73R6346 KLL-F
By Saunders H.B. No. 1431
Substitute the following for H.B. No. 1431:
By Hilderbran C.S.H.B. No. 1431
A BILL TO BE ENTITLED
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, other than a
4-1 chemical manufacturer or importer, that supplies hazardous
4-2 chemicals to other distributors or to purchasers.
4-3 (10) <(9)> "Employee" means a person who may be or may
4-4 have been exposed to hazardous chemicals in the person's workplace
4-5 under normal operating conditions or foreseeable emergencies, and
4-6 includes a person working for this state, a person working for a
4-7 political subdivision of this state, or a member of a volunteer
4-8 emergency service organization or, if the applicable OSHA standard
4-9 or MSHA standard is not in effect, a person working for a private
4-10 employer. Workers such as office workers or accountants who
4-11 encounter hazardous chemicals only in nonroutine, isolated
4-12 instances are not employees for purposes of this chapter <The term
4-13 does not include an office worker, a ground maintenance worker,
4-14 security personnel, or nonresident management unless the person's
4-15 job performance routinely involves potential exposure to hazardous
4-16 chemicals>.
4-17 (11) "Employer" means a person engaged in private
4-18 business, or the state or a political subdivision of the state,
4-19 including a state, county, or municipal agency, a public school, a
4-20 college or university, a river authority or publicly owned utility,
4-21 a volunteer emergency service organization, and other similar
4-22 employers. The term does not include any person to whom the
4-23 federal Occupational Safety and Health Act of 1970 (Pub. L. No.
4-24 91-596), the Federal Coal Mine Health and Safety Act of 1969 (Pub.
4-25 L. No. 91-173), or the federal Mine Safety and Health Amendments
5-1 Act of 1977 (Pub. L. No. 95-164) is applicable if that employer is
5-2 covered by a hazard communication standard.
5-3 (12) <(10)> "Expose" or "exposure" means that an
5-4 employee is subjected to a hazardous chemical in the course of
5-5 employment through any route of entry, including inhalation,
5-6 ingestion, skin contact, or absorption. The term includes
5-7 potential, possible, or accidental exposure under normal conditions
5-8 of use or in a reasonably foreseeable emergency.
5-9 (13) <(11) "Fire chief" means the elected or paid
5-10 administrative head of a fire department.>
5-11 <(12)> "Hazardous chemical" or "chemical" means an
5-12 element, <chemical> compound, or mixture of elements or compounds
5-13 that is a physical hazard or health hazard as defined by the OSHA
5-14 standard in 29 CFR Section 1910.1200(c), or a hazardous substance
5-15 as defined by the OSHA standard in 29 CFR Section 1910.1200(d)(3),
5-16 or by OSHA's written interpretations. A hazard determination may
5-17 be made by employers who choose not to rely on the evaluations made
5-18 by their suppliers if there are relevant qualitative or
5-19 quantitative differences. A hazard determination shall involve the
5-20 best professional judgment.
5-21 (14) "Health hazard" has the meaning given that term
5-22 by the OSHA standard (29 CFR 1910.1200(c)).
5-23 (15) "Identity" means a chemical or common name, or
5-24 alphabetical or numerical identification, that is indicated on the
5-25 material safety data sheet (MSDS) for the chemical. The identity
6-1 used must permit cross-references to be made among the workplace
6-2 chemical list, the label, and the MSDS.
6-3 (16) <(13)> "Label" means any written, printed, or
6-4 graphic material displayed on or affixed to a container of
6-5 hazardous chemicals.
6-6 (17) <(14) "Manufacturing employer" means an employer
6-7 with a workplace classified in Standard Industrial Classification
6-8 (SIC) Codes 20-39 who manufactures or uses a hazardous chemical.>
6-9 <(15)> "Material Safety Data Sheet" ("MSDS") means a
6-10 document containing chemical hazard and safe handling information
6-11 that is prepared in accordance with the requirements of the OSHA
6-12 standard for that document.
6-13 (18) "MSHA standard" means the Hazard Communication
6-14 Standard issued by the Mining Safety and Health Administration.
6-15 (19) <(16) "Nonmanufacturing employer" or "employer"
6-16 means an employer with a workplace in Standard Industrial
6-17 Classification (SIC) Codes 46-49 (pipelines, transportation
6-18 services, communications, and electric, gas, and sanitary
6-19 services), 51 (wholesale trade, nondurable goods), 75 (automotive
6-20 repair, services, and garages), 76 (miscellaneous repair services),
6-21 80 (health services), 82 (educational services), and 84 (museums,
6-22 art galleries, and botanical and zoological gardens); this state
6-23 and its political subdivisions; and volunteer emergency service
6-24 organizations. If the OSHA standard is not in effect, "employer"
6-25 also includes manufacturing employer.>
7-1 <(17)> "OSHA standard" means the Hazard Communication
7-2 Standard issued by the Occupational Safety and Health
7-3 Administration and codified as 29 CFR Section 1910.1200.
7-4 (20) "Physical hazard" means a chemical for which
7-5 there is scientifically valid evidence that it is a combustible
7-6 liquid, a compressed gas, explosive, flammable, an organic
7-7 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
7-8 water-reactive in terms defined in the OSHA standard.
7-9 (21) "Temporary workplace" means a stationary
7-10 workplace that is staffed less than 20 hours a week. A temporary
7-11 workplace may be considered to be a work area of the headquarters
7-12 workplace from which employees are routinely dispatched. Temporary
7-13 workplaces may include pumping stations, emergency response sites,
7-14 and similar workplaces.
7-15 (22) <(18)> "Work area" means a room, a <or> defined
7-16 space, a utility structure, or an emergency response site in a
7-17 workplace where hazardous chemicals are present, produced, or used
7-18 and where employees are present.
7-19 (23) <(19)> "Workplace" means an establishment, job
7-20 site, or project, at one geographical location containing one or
7-21 more work areas, with or without buildings, that is staffed 20 or
7-22 more hours a week.
7-23 (24) <(20)> "Workplace chemical list" means a list of
7-24 hazardous chemicals developed under Section 502.005(a) <or 29 CFR
7-25 Section 1910.1200(e)(i)>.
8-1 Sec. 502.004. APPLICABILITY OF CHAPTER. (a) Except as
8-2 provided by Subsection (b) <If the OSHA standard is not in effect>,
8-3 this chapter applies only to employers who are not required to
8-4 comply with the OSHA standard or the MSHA standard <manufacturing
8-5 employers and distributors>.
8-6 (b) Chemical manufacturers, importers, and distributors
8-7 shall provide MSDSs as required by Section 502.006. Penalties
8-8 provided by Sections 502.014, 502.015, and 502.016 may be assessed
8-9 against chemical manufacturers, importers, and distributors for
8-10 failure to provide MSDSs <If the OSHA standard is in effect,
8-11 manufacturing employers and distributors who are regulated by and
8-12 complying with the OSHA standard are required to comply only with
8-13 Sections 502.005(d) and (e); 502.006(a) and (d); 502.008;
8-14 502.012(d), (e), and (f); and 502.013(b), (c), (d), and (e)>.
8-15 (c) If an employer is covered by both this chapter and
8-16 Chapter 125, Agriculture Code, the employer is required to comply
8-17 only with this chapter <Nonmanufacturing employers who adopt and
8-18 comply with the OSHA standard may be certified by the commissioner
8-19 as being in compliance with this chapter, except for Sections
8-20 502.005(d) and (e); 502.006(a) and (d); 502.008; 502.012(d), (e),
8-21 and (f); and 502.013(b), (c), (d), and (e). The commissioner shall
8-22 make the certification annually>.
8-23 (d) This chapter, except Section <Sections 502.008(a) and>
8-24 502.009, does not apply to a <workplace where a> hazardous chemical
8-25 in a sealed and labeled package that is received and subsequently
9-1 sold or transferred in that package if:
9-2 (1) the seal and label remain <remains> intact while
9-3 the chemical is in the workplace; and
9-4 (2) the chemical does not remain in the workplace
9-5 longer than five working days.
9-6 (e) This chapter does not require labeling of the following
9-7 chemicals:
9-8 (1) any pesticide, as that term is defined in the
9-9 Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
9-10 Section 136 et seq.), when subject to the labeling requirements of
9-11 that Act and labeling regulations issued under that Act by the
9-12 Environmental Protection Agency;
9-13 (2) any food, food additive, color additive, drug,
9-14 cosmetic, or medical or veterinary device, including materials
9-15 intended for use as ingredients in those products such as flavors
9-16 and fragrances, as those terms are defined in the Federal Food,
9-17 Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) and
9-18 regulations issued under that Act, when they are subject to the
9-19 labeling requirements under that Act by the Food and Drug
9-20 Administration;
9-21 (3) any distilled spirits that are beverage alcohols,
9-22 wine, or malt beverages intended for nonindustrial use, as those
9-23 terms are defined in the Federal Alcohol Administration Act (27
9-24 U.S.C. Section 201 et seq.) and regulations issued under that Act,
9-25 when subject to the labeling requirements of that Act and labeling
10-1 regulations issued under that Act by the Bureau of Alcohol,
10-2 Tobacco, and Firearms; and
10-3 (4) any consumer product or hazardous substance, as
10-4 those terms are defined in the Consumer Product Safety Act (15
10-5 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
10-6 (15 U.S.C. Section 1261 et seq.), respectively, when subject to a
10-7 consumer product safety standard or labeling requirement of those
10-8 Acts or regulations issued under those Acts by the Consumer Product
10-9 Safety Commission.
10-10 (f) This chapter does not apply to <the following>:
10-11 (1) any hazardous waste, as that term is defined by
10-12 the federal Solid Waste Disposal Act, as amended by the Resource
10-13 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
10-14 Section 6901 et seq.), when subject to regulations issued under
10-15 that Act by the Environmental Protection Agency;
10-16 (2) a chemical in a laboratory under the direct
10-17 supervision or guidance of a technically qualified individual if:
10-18 (A) labels on incoming containers of chemicals
10-19 are not removed or defaced;
10-20 (B) the employer complies with Sections 502.006
10-21 and 502.009 with respect to laboratory employees; and
10-22 (C) the laboratory is not used primarily to
10-23 produce hazardous chemicals in bulk for commercial purposes;
10-24 (3) tobacco or tobacco products;
10-25 (4) wood or wood products;
11-1 (5) articles;
11-2 (6) food, drugs, cosmetics, or alcoholic beverages in
11-3 a retail food sale establishment that are packaged for sale to
11-4 consumers;
11-5 (7) food, drugs, or cosmetics intended for personal
11-6 consumption by an employee while in the workplace;
11-7 (8) any consumer product or hazardous substance, as
11-8 those terms are defined in the Consumer Product Safety Act (15
11-9 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
11-10 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
11-11 demonstrate it is used in the workplace in the same manner as
11-12 normal consumer use and if the use results in a duration and
11-13 frequency of exposure that is not greater than exposures
11-14 experienced by consumers;
11-15 (9) any drug, as that term is defined in the Federal
11-16 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) <an
11-17 article that:>
11-18 <(A) is formed to a specific shape or design
11-19 during manufacture;>
11-20 <(B) has an end use function dependent in whole
11-21 or in part on the article's shape or design during end use; and>
11-22 <(C) does not release or otherwise result in
11-23 exposure to a hazardous chemical under normal conditions of use;>
11-24 <(2) a product intended for personal consumption by an
11-25 employee in the workplace;>
12-1 <(3) a retail food sale establishment or other retail
12-2 trade establishment, except processing and repair area;>
12-3 <(4) a food, food additive, color additive, drug, or
12-4 cosmetic as those terms are defined by the federal Food, Drug, and
12-5 Cosmetic Act (21 U.S.C. Section 201 et seq.) or a distilled
12-6 spirit, wine, or malt beverage as those terms are defined by the
12-7 federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.);>
12-8 <(5) a chemical in a laboratory under the direct
12-9 supervision or guidance of a technically qualified individual if:>
12-10 <(A) labels on incoming containers of chemicals
12-11 are not removed or defaced;>
12-12 <(B) material safety data sheets received are
12-13 maintained and made accessible to employees and students;>
12-14 <(C) the laboratory complies with Sections
12-15 502.008 and 502.009; and>
12-16 <(D) the laboratory is not used primarily to
12-17 produce hazardous chemicals in bulk for commercial purposes;>
12-18 <(6) a product labeled in accordance with the federal
12-19 Insecticide, Fungicide, and Rodenticide Act (42 U.S.C. Section 136
12-20 et seq.);>
12-21 <(7) hazardous waste regulated in accordance with the
12-22 federal Resource Conservation and Recovery Act (42 U.S.C. Section
12-23 6901 et seq.)>; and
12-24 (10) <(8)> radioactive waste.
12-25 Sec. 502.005. WORKPLACE CHEMICAL LIST. (a) For the purpose
13-1 of worker right-to-know, an <An> employer shall compile and
13-2 maintain a workplace chemical list that contains the following
13-3 information for each hazardous chemical normally present <used or
13-4 stored> in the workplace or temporary workplace in excess of 55
13-5 gallons or 500 pounds or in excess of an amount that the board
13-6 determines by rule for certain highly toxic or dangerous hazardous
13-7 chemicals:
13-8 (1) the identity <chemical name and the common name>
13-9 used on the MSDS and container label; and
13-10 (2) <the nomenclature used in identifying the chemical
13-11 name;>
13-12 <(3)> the work area in which the hazardous chemical is
13-13 normally present <stored or used>.
13-14 (b) The employer shall update the workplace chemical list as
13-15 necessary but at least by December 31 of each <once a> year. Each
13-16 workplace chemical list shall be dated and signed by the person
13-17 responsible for compiling the information.
13-18 (c) The workplace chemical list may be prepared for the
13-19 workplace as a whole or for each work area or temporary workplace
13-20 and must be readily available to employees and their
13-21 representatives. All <New or newly assigned> employees shall be
13-22 made aware of the workplace chemical list before working with or in
13-23 a work area containing hazardous chemicals.
13-24 (d) <An employer or manufacturing employer shall give the
13-25 commissioner a workplace chemical list. An employer or
14-1 manufacturing employer beginning operation shall give the
14-2 commissioner the workplace chemical list not later than the 60th
14-3 day after the date on which the employer or manufacturing employer
14-4 begins operation.>
14-5 <(e)> An <employer or manufacturing> employer shall maintain
14-6 a workplace chemical list for at least 30 years. The <employer or
14-7 manufacturing> employer shall send complete records to the director
14-8 <commissioner> if the employer <business> ceases to operate <in
14-9 this state>.
14-10 Sec. 502.006. MATERIAL SAFETY DATA SHEET. (a) A chemical
14-11 manufacturer or distributor shall provide appropriate material
14-12 safety data sheets to employers who acquire <purchasers of>
14-13 hazardous chemicals in this state with each initial shipment and
14-14 with the first shipment after an MSDS is updated. The MSDSs must
14-15 conform to the most current requirements of the OSHA standard.
14-16 (b) An employer shall maintain a legible copy of a <the
14-17 most> current MSDS <received from a manufacturer or distributor>
14-18 for each hazardous chemical purchased. If the employer does not
14-19 have a current <manufacturer or distributor does not provide an>
14-20 MSDS for a hazardous chemical <on the workplace chemical list> when
14-21 the chemical is received at the workplace, the employer shall
14-22 request an MSDS in writing from the manufacturer or distributor in
14-23 a timely manner or shall otherwise obtain a current MSDS. The
14-24 manufacturer or distributor shall respond with an appropriate MSDS
14-25 in a timely manner.
15-1 (c) Material safety data sheets shall be readily available,
15-2 on request, for review by employees or designated representatives
15-3 at each workplace.
15-4 (d) A copy of an MSDS maintained by an employer under this
15-5 section shall be provided to the director <commissioner> on
15-6 request. <The commissioner shall request an MSDS from an employer
15-7 or manufacturing employer when a person requests an MSDS from the
15-8 commissioner and the person's request is based on that person's
15-9 review of an employer's or manufacturing employer's workplace
15-10 chemical list.>
15-11 Sec. 502.007. LABEL. (a) A label on an existing <incoming>
15-12 container of a hazardous chemical may not be removed or defaced
15-13 unless it is illegible, inaccurate, or does not conform to the OSHA
15-14 standard or other applicable labeling requirement. Primary
15-15 containers must be relabeled with at least the identity appearing
15-16 on the MSDS, the pertinent physical and health hazards, including
15-17 the organs that would be affected, and the manufacturer's name and
15-18 address. Except as provided by Subsection (b), secondary
15-19 containers must be relabeled with at least the identity appearing
15-20 on the MSDS and appropriate hazard warnings.
15-21 (b) An employee may not be required to work with a hazardous
15-22 chemical from an unlabeled container except for a portable
15-23 container intended for the immediate use of the employee who
15-24 performs the transfer.
15-25 Sec. 502.008. <EMERGENCY INFORMATION. (a) An employer or
16-1 manufacturing employer who normally stores a hazardous chemical in
16-2 an amount in excess of 55 gallons or 500 pounds or in excess of an
16-3 amount the board determines by rule for certain highly toxic or
16-4 dangerous hazardous chemicals shall provide to the fire chief of
16-5 the fire department having jurisdiction over the workplace, in
16-6 writing, the names and telephone numbers of knowledgeable
16-7 representatives of the employer or manufacturing employer who can
16-8 be contacted for further information or contacted in case of an
16-9 emergency.>
16-10 <(b) Each employer or manufacturing employer, on request,
16-11 shall provide a copy of the workplace chemical list to the fire
16-12 chief. The employer shall notify the fire chief of any significant
16-13 changes to the workplace chemical list.>
16-14 <(c) The fire chief or the fire chief's representative, on
16-15 request, may conduct on site inspections of the chemicals on the
16-16 workplace chemical list for the sole purpose of planning fire
16-17 department activities in case of an emergency.>
16-18 <(d) An employer or a manufacturing employer, on request,
16-19 shall give the fire chief a copy of the MSDS for any chemical on
16-20 the workplace chemical list.>
16-21 <(e) The fire chief shall make the workplace chemical list
16-22 and MSDSs available to members of the fire department and to other
16-23 personnel outside the fire department who are responsible for
16-24 preplanning emergency activities. The fire chief may not otherwise
16-25 distribute the information without approval of the employer or
17-1 manufacturing employer.>
17-2 <Sec. 502.009.> OUTREACH PROGRAM. (a) The director
17-3 <commissioner> shall develop an outreach program that:
17-4 (1) consists of an education and training program in
17-5 the form of instructional materials to assist employers in
17-6 fulfilling the requirements of Section 502.009 <502.010>; and
17-7 (2) includes the development and distribution of a
17-8 supply of informational leaflets concerning employer's duties,
17-9 employee rights, <the public's ability to obtain information under
17-10 this chapter,> the outreach program, and the effects of hazardous
17-11 chemicals.
17-12 (b) The director <commissioner> may contract with a public
17-13 institution of higher education or other public or private
17-14 organization to develop and implement the outreach program.
17-15 (c) The director <commissioner> shall develop and provide to
17-16 each employer a suitable form of notice providing employees with
17-17 information relating to employee rights under this chapter.
17-18 (d) The director <commissioner> shall publicize the
17-19 availability of information to answer inquiries from employees,
17-20 employers, or the public in this state concerning the effects of
17-21 hazardous chemicals.
17-22 (e) In cooperation with the director <commissioner>, an
17-23 employer may provide an outreach program in the community.
17-24 Sec. 502.009 <502.010>. EMPLOYEE EDUCATION PROGRAM. (a) An
17-25 employer shall provide<, at least once a year,> an education and
18-1 training program for employees who use or handle hazardous
18-2 chemicals.
18-3 (b) An employer shall develop, implement, and maintain at
18-4 the workplace a written hazard communication program for the
18-5 workplace that describes how the criteria specified in this chapter
18-6 will be met.
18-7 (c) An education and training program must include, as
18-8 appropriate:
18-9 (1) information on interpreting labels and MSDSs and
18-10 the relationship between those two methods of hazard communication;
18-11 (2) the location by work area, acute and chronic
18-12 effects, and safe handling of hazardous chemicals known to be
18-13 present in the employees' work area and to which the employees may
18-14 be exposed;
18-15 (3) the proper use of protective equipment and first
18-16 aid treatment to be used with respect to the hazardous chemicals to
18-17 which the employees may be exposed; and
18-18 (4) general safety instructions on the handling,
18-19 cleanup procedures, and disposal of hazardous chemicals.
18-20 (d) Training may be conducted by categories of chemicals.
18-21 An employer must advise employees that information is available on
18-22 the specific hazards of individual chemicals through the MSDSs.
18-23 Protective equipment and first aid treatment may be by categories
18-24 of hazardous chemicals.
18-25 (e) <Not later than the 30th day after an employer provides
19-1 an education and training program, the employer shall report to the
19-2 commissioner that the program has been provided to the employees.>
19-3 <(c)> An employer shall provide additional instruction to an
19-4 employee <employees> when the potential for exposure to hazardous
19-5 chemicals in the employee's work area increases significantly
19-6 <changes> or when the employer receives new and significant
19-7 information concerning the hazards of a chemical in the employee's
19-8 work area. The addition of new chemicals alone does not
19-9 necessarily require additional training.
19-10 (f) <(d)> An employer shall provide training to a new or
19-11 newly assigned employee before the employee works with or in a work
19-12 area containing a hazardous chemical.
19-13 (g) An employer shall keep the written hazard communication
19-14 program and a record of each training session given to employees,
19-15 including the date, a roster of the employees who attended, the
19-16 subjects covered in the training session, and the names of the
19-17 instructors. Those records shall be maintained for at least five
19-18 years by the employer. The department shall have access to those
19-19 records and may interview employees during inspections.
19-20 (h) Emergency service organizations shall provide, to their
19-21 members or employees who may encounter hazardous chemicals during
19-22 an emergency, information on recognizing, evaluating, and
19-23 controlling exposure to the chemicals.
19-24 (i) <(e) An employer shall keep a record of the dates of
19-25 training sessions given to employees.>
20-1 <(f) An education and training program must include, as
20-2 appropriate:>
20-3 <(1) information on interpreting labels and MSDSs and
20-4 the relationship between those two methods of hazard communication;>
20-5 <(2) the location, acute and chronic effects, and safe
20-6 handling of hazardous chemicals used by the employees;>
20-7 <(3) protective equipment and first aid treatment to
20-8 be used with respect to the hazardous chemicals used by the
20-9 employees; and>
20-10 <(4) general safety instructions on the handling,
20-11 cleanup procedures, and disposal of hazardous chemicals.>
20-12 <(g)> As part of an outreach program created in accordance
20-13 with Section 502.008 <502.009>, the director <commissioner> shall
20-14 develop an education and training assistance program to assist
20-15 employers who are unable to develop the programs because of size or
20-16 other practical considerations. The program shall be made
20-17 available to those employers on request.
20-18 Sec. 502.010 <502.011>. LIABILITY UNDER OTHER LAW.
20-19 Providing information to an employee does not affect:
20-20 (1) the liability of an employer with regard to the
20-21 health and safety of an employee or other person exposed to
20-22 hazardous chemicals;
20-23 (2) the employer's responsibility to take any action
20-24 to prevent occupational disease as required under other law; or
20-25 (3) any other duty or responsibility of a
21-1 manufacturer, producer, or formulator to warn ultimate users of a
21-2 hazardous chemical under other law.
21-3 Sec. 502.011 <502.012>. COMPLAINTS AND<,> INVESTIGATIONS<,
21-4 AND PENALTIES>. (a) The director <commissioner> or the director's
21-5 <commissioner's> representative shall investigate in a timely
21-6 manner a complaint received in writing from an employee or an
21-7 employee's designated representative relating to an alleged
21-8 violation of this chapter by an <a nonmanufacturing> employer.
21-9 (b) A complaint received from a person <an employee or an
21-10 employee's designated representative> relating to an alleged
21-11 violation <by a manufacturing employer> shall be referred <by the
21-12 complainant> to the federal Occupational Safety and Health
21-13 Administration (OSHA) or to the federal Mine Safety and Health
21-14 Administration (MSHA) if the complaint is related to an applicable
21-15 OSHA or MSHA requirement and the applicable OSHA or MSHA standard
21-16 is in effect. The director <commissioner> or the director's
21-17 <commissioner's> representative shall investigate the complaint if:
21-18 (1) the applicable OSHA or MSHA standard is not in
21-19 effect; or
21-20 (2) the complaint is based on a requirement of this
21-21 chapter.
21-22 (c) On presentation of appropriate credentials, an officer
21-23 or representative of the director <commissioner> may enter a
21-24 workplace at reasonable times to inspect and investigate
21-25 complaints.
22-1 (d) The department may find multiple violations by an
22-2 employer based on distinct requirements of this chapter <An
22-3 employer or manufacturing employer found to be in violation of this
22-4 chapter must comply not later than the 14th day after the date of
22-5 the finding. An employer or manufacturing employer that does not
22-6 comply before the 15th day after the date of written notification
22-7 of a violation is subject to an administrative penalty of not more
22-8 than $500 for each violation.>
22-9 <(e) An employer or manufacturing employer who knowingly
22-10 discloses false information or negligently fails to disclose a
22-11 hazard as required by this chapter is subject to a civil penalty of
22-12 not more than $5,000 for each violation.>
22-13 <(f) An employer or manufacturing employer who proximately
22-14 causes an injury to an individual by knowingly disclosing false
22-15 hazard information or knowingly failing to disclose hazard
22-16 information as required by this chapter is subject to a criminal
22-17 fine of not more than $25,000.>
22-18 <(g) This section does not affect any other right of an
22-19 employee or any other person to receive compensation for damages
22-20 under other law>.
22-21 Sec. 502.012. REPORTING FATALITIES AND INJURIES. (a)
22-22 Within 48 hours after the occurrence of an employee accident that
22-23 directly or indirectly involves chemical exposure or that involves
22-24 asphyxiation, and that is fatal to one or more employees or results
22-25 in the hospitalization of five or more employees, the employer of
23-1 any of the employees so injured or killed shall report the accident
23-2 either orally or in writing to the department.
23-3 (b) The report to the department shall relate the
23-4 circumstances of the accident, the number of fatalities, and the
23-5 extent of any injuries. If it is necessary to complete the
23-6 investigation of an incident, the department may require additional
23-7 reports in writing as necessary.
23-8 Sec. 502.013. ADVISORY COMMITTEE. The board shall appoint
23-9 an advisory committee to assist the department in reviewing
23-10 policies and procedures necessary to implement this chapter. The
23-11 advisory committee may consist of not more than 10 members
23-12 representing municipalities, counties, state agencies other than
23-13 the department, public institutions of higher education, public
23-14 employee organizations representing employees of those groups, and
23-15 the public.
23-16 Sec. 502.014. ADMINISTRATIVE PENALTY. (a) The director may
23-17 assess an administrative penalty against an employer who violates
23-18 this chapter, board rules adopted under this chapter, or an order
23-19 issued under this chapter.
23-20 (b) If the department finds one or more violations of this
23-21 chapter, the director may issue a notice of violation to the
23-22 employer. The notice of violation shall specifically describe the
23-23 violation, refer to the applicable section or subsection of the
23-24 chapter, and state the amount of the penalty, if any, to be
23-25 assessed by the director.
24-1 (c) An employer who receives a notice of violation may
24-2 respond to the department in writing within 15 days after the date
24-3 of receipt of the notice of violation in one of the ways provided
24-4 by Subsection (d), (e), or (f).
24-5 (d) If the employer disputes the validity of the violation
24-6 and has reason to believe that the findings of the department were
24-7 based on inaccurate or incomplete information, the employer may
24-8 request an informal conference with representatives of the
24-9 department. The purpose of an informal conference is to permit the
24-10 employer to meet with department representatives to discuss the
24-11 basis of the violation and to provide information to the
24-12 department. The department shall schedule the informal conference.
24-13 A request for an informal conference made in bad faith is a
24-14 violation of this chapter.
24-15 (e) The employer may correct the violation and certify to
24-16 the department that the corrections have been made.
24-17 (f) The employer may request a hearing.
24-18 (g) Following an informal conference, the department shall
24-19 respond in writing to the employer, stating whether the department
24-20 intends to withdraw the notice of violation or pursue it. If the
24-21 department intends to pursue the notice of violation, the employer
24-22 may respond as provided by either Subsection (h) or (i) within 10
24-23 days after the date of receipt of the department's correspondence.
24-24 (h) The employer may correct the violation and certify to
24-25 the department that the corrections have been made.
25-1 (i) The employer may request a hearing.
25-2 (j) A request for an informal conference or a statement by
25-3 an employer that the employer is in compliance with the provision
25-4 of this chapter does not waive the employer's right to a hearing.
25-5 (k) The director may not assess an administrative penalty
25-6 for any violation that has been corrected within 15 days after the
25-7 date of receipt of the notice of violation, the date of receipt of
25-8 the department's response by the employer, or 10 days after the
25-9 date of receipt by the employer of the department's response to the
25-10 informal conference provided for in Subsection (c), whichever is
25-11 later.
25-12 (l) In determining the amount of the penalty, the director
25-13 shall consider:
25-14 (1) the employer's previous violations;
25-15 (2) the seriousness of the violation;
25-16 (3) any hazard to the health and safety of the
25-17 employee;
25-18 (4) the employer's demonstrated good faith;
25-19 (5) the duration of the violation; and
25-20 (6) other matters as justice may require.
25-21 (m) Each day a violation continues may be considered a
25-22 separate violation.
25-23 (n) The penalty may not exceed $500 for each violation.
25-24 Sec. 502.0141. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
25-25 (a) An administrative penalty may be assessed only after an
26-1 employer charged with a violation is given an opportunity for a
26-2 hearing.
26-3 (b) If a hearing is held, the director shall make findings
26-4 of fact and shall issue a written decision regarding the occurrence
26-5 of the violation and the amount of the penalty that may be
26-6 warranted.
26-7 (c) If the employer charged with the violation does not
26-8 request a hearing in a timely manner, the director may assess a
26-9 penalty after determining that a violation has occurred and the
26-10 amount of the penalty that may be warranted.
26-11 (d) After making a determination under this section that a
26-12 penalty is to be assessed against an employer, the director shall
26-13 issue an order requiring that the employer pay the penalty.
26-14 (e) The director may consolidate a hearing held under this
26-15 section with another proceeding.
26-16 Sec. 502.0142. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
26-17 REVIEW. (a) Not later than the 30th day after the date an order
26-18 finding that a violation has occurred is issued, the director shall
26-19 inform the employer against whom the order is issued of the amount
26-20 of the penalty for the violation.
26-21 (b) Within 30 days after the date the director's order is
26-22 final as provided by Section 16(c), Administrative Procedure and
26-23 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
26-24 Statutes), the employer shall:
26-25 (1) pay the amount of the penalty;
27-1 (2) pay the amount of the penalty and file a petition
27-2 for judicial review contesting the occurrence of the violation, the
27-3 amount of the penalty, or both the occurrence of the violation and
27-4 the amount of the penalty; or
27-5 (3) without paying the amount of the penalty, file a
27-6 petition for judicial review contesting the occurrence of the
27-7 violation, the amount of the penalty, or both the occurrence of the
27-8 violation and the amount of the penalty.
27-9 (c) Within the 30-day period, an employer who acts under
27-10 Subsection (b)(3) may:
27-11 (1) stay enforcement of the penalty by:
27-12 (A) paying the amount of the penalty to the
27-13 court for placement in an escrow account; or
27-14 (B) giving to the court a supersedeas bond that
27-15 is approved by the court for the amount of the penalty and that is
27-16 effective until all judicial review of the director's order is
27-17 final; or
27-18 (2) request the court to stay enforcement of the
27-19 penalty by:
27-20 (A) filing with the court a sworn affidavit of
27-21 the employer stating that the employer is financially unable to pay
27-22 the amount of the penalty and is financially unable to give the
27-23 supersedeas bond; and
27-24 (B) giving a copy of the affidavit to the
27-25 director by certified mail.
28-1 (d) Subsection (c)(1) does not apply to the state or a
28-2 political subdivision. The penalty may not be enforced against the
28-3 state or a political subdivision until all judicial review has been
28-4 exhausted.
28-5 (e) If the director receives a copy of an affidavit under
28-6 Subsection (c)(2), the director may file with the court, within
28-7 five days after the date the copy is received, a contest to the
28-8 affidavit. The court shall hold a hearing on the facts alleged in
28-9 the affidavit as soon as practicable and shall stay the enforcement
28-10 of the penalty on finding that the alleged facts are true. The
28-11 employer who files an affidavit has the burden of proving that the
28-12 employer is financially unable to pay the amount of the penalty and
28-13 to give a supersedeas bond.
28-14 (f) If the employer does not pay the amount of the penalty
28-15 and the enforcement of the penalty is not stayed, the director may
28-16 refer the matter to the attorney general for collection of the
28-17 amount of the penalty.
28-18 (g) Judicial review of the order of the director:
28-19 (1) is instituted by filing a petition as provided by
28-20 Section 19, Administrative Procedure and Texas Register Act
28-21 (Article 6252-13a, Vernon's Texas Civil Statutes); and
28-22 (2) is under the substantial evidence rule.
28-23 (h) If the court sustains the occurrence of the violation,
28-24 the court may uphold or reduce the amount of the penalty and order
28-25 the employer to pay the full or reduced amount of the penalty. If
29-1 the court does not sustain the occurrence of the violation, the
29-2 court shall order that no penalty is owed.
29-3 (i) When the judgment of the court becomes final, the court
29-4 shall proceed under this subsection. If the employer paid the
29-5 amount of the penalty and if that amount is reduced or is not
29-6 upheld by the court, the court shall order that the appropriate
29-7 amount plus accrued interest be remitted to the employer. The
29-8 rate of the interest is the rate charged on loans to depository
29-9 institutions by the New York Federal Reserve Bank, and the interest
29-10 shall be paid for the period beginning on the date the penalty was
29-11 paid and ending on the date the penalty is remitted. If the
29-12 employer gave a supersedeas bond and if the amount of the penalty
29-13 is not upheld by the court, the court shall order the release of
29-14 the bond. If the employer gave a supersedeas bond and if the
29-15 amount of the penalty is reduced, the court shall order the release
29-16 of the bond after the employer pays the amount.
29-17 (j) All proceedings under this section are subject to the
29-18 Administrative Procedure and Texas Register Act (Article 6252-13a,
29-19 Vernon's Texas Civil Statutes).
29-20 Sec. 502.015. CIVIL PENALTY; INJUNCTION. (a) If it appears
29-21 that an employer has violated, is violating, or is threatening to
29-22 violate this chapter or any rule adopted or order issued under this
29-23 chapter, the director may request the attorney general or the
29-24 district, county, or city attorney of the municipality or county in
29-25 which the violation has occurred, is occurring, or may occur to
30-1 institute a civil suit for:
30-2 (1) injunctive relief to restrain the employer from
30-3 continuing the violation or threat of violation;
30-4 (2) the assessment and recovery of a civil penalty for
30-5 a violation; or
30-6 (3) both the injunctive relief and the civil penalty.
30-7 (b) The penalty may be in an amount not to exceed $2,000 a
30-8 day for each violation, with a total not to exceed $20,000 for that
30-9 violation.
30-10 (c) In determining the amount of the penalty, the court
30-11 shall consider the employer's history of previous violations, the
30-12 seriousness of the violation, any hazard to health and safety of
30-13 the public, the demonstrated good faith of the employer charged,
30-14 and other matters as justice may require.
30-15 (d) Any civil penalty recovered in a suit instituted by the
30-16 attorney general under this chapter shall be deposited in the state
30-17 treasury to the credit of the general revenue fund. Any civil
30-18 penalty recovered in a suit instituted by a local government under
30-19 this chapter shall be paid to the local government.
30-20 (e) This section does not affect any other right of an
30-21 employee or any other employer to receive compensation for damages
30-22 under other law.
30-23 Sec. 502.016. CRIMINAL PENALTY. An employer who is required
30-24 to disclose hazard information under this chapter and who
30-25 proximately causes an occupational disease or injury to an
31-1 individual by knowingly disclosing false hazard information or
31-2 knowingly failing to disclose hazard information provided on an
31-3 MSDS commits an offense that is punishable by a fine of not more
31-4 than $10,000 for each violation. Each day of violation constitutes
31-5 a separate offense, except that the fine may not exceed $100,000
31-6 for that violation. This section does not affect any other right
31-7 of an employee or any other employer to receive compensation for
31-8 damages under other law.
31-9 Sec. 502.017 <502.013>. EMPLOYEE NOTICE; RIGHTS OF
31-10 EMPLOYEES. (a) An employer shall post and maintain adequate
31-11 notice, at locations where notices are normally posted, informing
31-12 employees of their rights under this chapter. If the director
31-13 <commissioner> does not prepare the notice under Section
31-14 502.008 <502.009>, the employer shall prepare the notice.
31-15 (b) Employees who may be exposed to hazardous chemicals
31-16 shall be informed of the exposure and shall have access to the
31-17 workplace chemical list and MSDSs for the hazardous chemicals.
31-18 Employees, on request, shall be provided a copy of a specific MSDS
31-19 with any trade secret information deleted. In addition, employees
31-20 shall receive training concerning the hazards of the chemicals and
31-21 measures they can take to protect themselves from those hazards.
31-22 Employees shall be provided with appropriate personal protective
31-23 equipment. These rights are guaranteed.
31-24 (c) An employer <or a manufacturing employer> may not
31-25 discharge, cause to be discharged, otherwise discipline, or in any
32-1 manner discriminate against an employee because the employee has:
32-2 (1) filed a complaint;
32-3 (2) assisted an inspector of the department who may
32-4 make or is making an inspection under Section 502.011 <502.012>;
32-5 (3) instituted or caused to be instituted any
32-6 proceeding under or related to this chapter;
32-7 (4) testified or is about to testify in a proceeding
32-8 under this chapter; or
32-9 (5) exercised any rights afforded under this chapter
32-10 on behalf of the employee or on behalf of others.
32-11 (d) Pay, position, seniority, or other benefits may not be
32-12 lost as the result of the exercise of any right provided by this
32-13 chapter.
32-14 (e) A waiver by an employee of the benefits or requirements
32-15 of this chapter is void. An employer's <or a manufacturing
32-16 employer's> request or requirement that an employee waive any
32-17 rights under this chapter as a condition of employment is a
32-18 violation of this chapter.
32-19 <Sec. 502.014. TRADE SECRETS. (a) An employer who believes
32-20 that all or a part of the information required under Section
32-21 502.005 or Section 502.008(b) or (d) is a trade secret may withhold
32-22 the information if:>
32-23 <(1) material safety data sheets are available to
32-24 employees in the area where they work;>
32-25 <(2) hazard information concerning the trade secret
33-1 chemicals, or an MSDS with trade secret information deleted, is
33-2 provided, on request, to the fire chief and the commissioner;>
33-3 <(3) all relevant information is provided to a
33-4 physician diagnosing and treating a person exposed to the chemical,
33-5 under requirements provided by the OSHA standard in 29 CFR Section
33-6 1910.1200(i)(2); and>
33-7 <(4) the employer can substantiate the trade secret
33-8 claim.>
33-9 <(b) The commissioner, on the commissioner's initiative or
33-10 on the request of an employee, the employee's designated
33-11 representative, a fire chief, or a person who made a request under
33-12 Section 502.006(d), may request any or all of the data
33-13 substantiating the trade secret claim to determine whether a claim
33-14 made under Subsection (a) is valid.>
33-15 <(c) When making a determination of a trade secret claim,
33-16 the commissioner shall conduct a reasonable search of available
33-17 literature to determine whether the hazard information is accurate.>
33-18 <(d) Based on a review of the health and safety information
33-19 made available by the employer and on other available information,
33-20 the commissioner shall sign and add an addendum to the MSDS
33-21 stating:>
33-22 <(1) the commissioner's opinion that the MSDS reflects
33-23 a prudent assessment of the scientific evidence regarding hazards;
33-24 or>
33-25 <(2) if the commissioner determines that the MSDS does
34-1 not reflect such a prudent assessment, the commissioner's opinion
34-2 of a prudent assessment of the scientific evidence.>
34-3 <(e) The commissioner shall complete the assessment not
34-4 later than the 90th day after the date on which the commissioner
34-5 receives the information substantiating the trade secret claim.>
34-6 <(f) If the commissioner receives information marked
34-7 "confidential" by the employer, the commissioner shall:>
34-8 <(1) protect the information from disclosure; and>
34-9 <(2) return the information to the employer when a
34-10 final determination is made.>
34-11 <(g) An employer whose trade secret claim is determined to
34-12 be invalid under this section may petition for judicial review not
34-13 later than the 30th day after the date on which the employer was
34-14 notified by the commissioner that the trade secret claim is
34-15 invalid. Judicial review is by trial de novo in a district court
34-16 in Travis County.>
34-17 Sec. 502.018 <502.015>. STANDARD FOR PHYSICIAN TREATMENT.
34-18 For the purposes of this chapter, the requirements in the OSHA
34-19 standard for physicians treating employees (29 CFR 1910.1200(l))
34-20 apply to physicians treating persons.
34-21 Sec. 502.019 <502.016>. RULES<; FEES>. <(a)> The board may
34-22 adopt rules and administrative procedures reasonably necessary to
34-23 carry out the purposes of this chapter.
34-24 <(b) The board may authorize the collection of fees from
34-25 manufacturing and nonmanufacturing employers for the filing of
35-1 workplace chemical lists required by this chapter or for other
35-2 community right-to-know purposes under the department's
35-3 jurisdiction. The fees shall be paid annually and may not exceed
35-4 $50 for each required submission. To minimize the fees, the
35-5 department by rule shall provide for consolidated filings for
35-6 employers with multiple or temporary workplaces if the workplace
35-7 chemical lists contain fewer than 25 items.>
35-8 SECTION 2. Subtitle D, Title 6, Health and Safety Code, is
35-9 amended by adding Chapters 505-507 to read as follows:
35-10 CHAPTER 505. MANUFACTURING FACILITY COMMUNITY
35-11 RIGHT-TO-KNOW ACT
35-12 Sec. 505.001. SHORT TITLE. This chapter may be cited as the
35-13 Manufacturing Facility Community Right-To-Know Act.
35-14 Sec. 505.002. FINDINGS; PURPOSE. (a) The legislature finds
35-15 that:
35-16 (1) the health and safety of persons living in this
35-17 state may be improved by providing access to information regarding
35-18 hazardous chemicals to which those persons may be exposed during
35-19 emergency situations or as a result of proximity to the manufacture
35-20 or use of those chemicals; and
35-21 (2) many facility operators in this state have
35-22 established suitable information programs for their communities and
35-23 that access to the information is required of most facility
35-24 operators under the federal Emergency Planning and Community
35-25 Right-To-Know Act (EPCRA).
36-1 (b) It is the intent and purpose of this chapter to ensure
36-2 that accessibility to information regarding hazardous chemicals is
36-3 provided to:
36-4 (1) fire departments responsible for dealing with
36-5 chemical hazards during an emergency;
36-6 (2) local emergency planning committees and other
36-7 emergency planning organizations; and
36-8 (3) the director to make the information available to
36-9 the public through specific procedures.
36-10 Sec. 505.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
36-11 (a) In this chapter, a reference to a federal law or regulation
36-12 means a reference to the most current version of that law or
36-13 regulation.
36-14 (b) In this chapter, a reference to Standard Industrial
36-15 Classification (SIC), to nomenclature systems developed by the
36-16 International Union of Pure and Applied Chemistry (IUPAC) or the
36-17 Chemical Abstracts Service (CAS), or to other information,
36-18 including information such as classification codes, performance
36-19 standards, systematic names, standards, and systems described in
36-20 publications sponsored by private technical or trade organizations,
36-21 means a reference to the most current version of the publication.
36-22 Sec. 505.004. DEFINITIONS. In this chapter:
36-23 (1) "Article" means a manufactured item:
36-24 (A) that is formed to a specific shape or design
36-25 during manufacture;
37-1 (B) that has end-use functions dependent in
37-2 whole or in part on its shape or design during end use; and
37-3 (C) that does not release, or otherwise result
37-4 in exposure to, a hazardous chemical under normal conditions of
37-5 use.
37-6 (2) "Board" means the Texas Board of Health.
37-7 (3) "Chemical name" means:
37-8 (A) the scientific designation of a chemical in
37-9 accordance with the nomenclature system developed by the
37-10 International Union of Pure and Applied Chemistry (IUPAC) or the
37-11 Chemical Abstracts Service (CAS) rules of nomenclature; or
37-12 (B) a name that clearly identifies the chemical
37-13 for the purpose of conducting a hazard evaluation.
37-14 (4) "Common name" means a designation of
37-15 identification, such as a code name, code number, trade name, brand
37-16 name, or generic name, used to identify a chemical other than by
37-17 its chemical name.
37-18 (5) "Department" means the Texas Department of Health.
37-19 (6) "Director" means the director of the Texas
37-20 Department of Health.
37-21 (7) "EPA" means the United States Environmental
37-22 Protection Agency.
37-23 (8) "EPCRA" or "SARA Title III" means the federal
37-24 Emergency Planning and Community Right-To-Know Act, also known as
37-25 the Superfund Amendments and Reauthorization Act of 1986, Title
38-1 III, Pub. L. No. 99-499 et seq.
38-2 (9) "Extremely hazardous substance" means any
38-3 substance as defined in EPCRA, Section 302, or listed by the United
38-4 States Environmental Protection Agency in 40 CFR Part 355,
38-5 Appendices A and B.
38-6 (10) "Facility" means all buildings, equipment,
38-7 structures, and other stationary items that are located on a single
38-8 site or on contiguous or adjacent sites, that are owned or operated
38-9 by the same person, or by any person who controls, is controlled
38-10 by, or is under common control with that person, and that is in
38-11 Standard Industrial Codes (SIC) 20-39.
38-12 (11) "Facility operator" or "operator" means the
38-13 person who controls the day-to-day operations of the facility.
38-14 (12) "Fire chief" means the elected or paid
38-15 administrative head of a fire department.
38-16 (13) "Hazardous chemical" has the meaning given that
38-17 term by 29 CFR 1910.1200(c), except that the term does not
38-18 include:
38-19 (A) any food, food additive, color additive,
38-20 drug, or cosmetic regulated by the Food and Drug Administration;
38-21 (B) any substance present as a solid in any
38-22 manufactured item to the extent exposure to the substance does not
38-23 occur under normal conditions of use;
38-24 (C) any substance to the extent it is used for
38-25 personal, family, or household purposes, or is present in the same
39-1 form and concentration as a product packaged for distribution and
39-2 use by the public;
39-3 (D) any substance to the extent it is used in a
39-4 research laboratory or a hospital or other medical facility under
39-5 the direct supervision of a technically qualified individual; and
39-6 (E) any substance to the extent it is used in
39-7 routine agricultural operations or is a fertilizer held for sale by
39-8 a retailer to the ultimate consumer.
39-9 (14) "Health hazard" has the meaning given that term
39-10 by the OSHA standard (29 CFR 1910.1200(c)).
39-11 (15) "Identity" means any chemical or common name, or
39-12 alphabetical or numerical identification, that is indicated on the
39-13 material safety data sheet (MSDS) for the chemical. The identity
39-14 used must permit cross-references to be made among the facility
39-15 chemical list, the label, and the MSDS.
39-16 (16) "Label" means any written, printed, or graphic
39-17 material displayed on or affixed to a container of hazardous
39-18 chemicals.
39-19 (17) "Local emergency planning committee" means a
39-20 committee formed under the requirements of EPCRA, Section 301, and
39-21 recognized by the state emergency response commission for the
39-22 purposes of emergency planning and public information.
39-23 (18) "Material safety data sheet" or "MSDS" means a
39-24 document containing chemical hazard and safe handling information
39-25 that is prepared in accordance with the requirements of the OSHA
40-1 standard for that document.
40-2 (19) "OSHA standard" means the Hazard Communication
40-3 Standard issued by the Occupational Safety and Health
40-4 Administration and codified as 29 CFR Section 1910.1200.
40-5 (20) "Physical hazard" means a chemical for which
40-6 there is scientifically valid evidence that it is a combustible
40-7 liquid, a compressed gas, explosive, flammable, an organic
40-8 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
40-9 water-reactive in terms defined in the OSHA standard.
40-10 (21) "State emergency response commission" means the
40-11 state emergency management council or other committee appointed by
40-12 the governor in accordance with EPCRA.
40-13 (22) "Threshold planning quantity" means the minimum
40-14 quantity of an extremely hazardous substance for which a facility
40-15 owner or operator must participate in emergency planning, as
40-16 defined by the EPA pursuant to EPCRA, Section 302.
40-17 (23) "Tier two form" means:
40-18 (A) a form specified by the department under
40-19 Section 505.006 for listing hazardous chemicals as required by
40-20 EPCRA; or
40-21 (B) a form accepted by the EPA under EPCRA for
40-22 listing hazardous chemicals together with additional information
40-23 required by the department for administering its functions related
40-24 to EPCRA.
40-25 (24) "Workplace chemical list" means a list of
41-1 hazardous chemicals developed under 29 CFR Section 1910.1200(e)(i).
41-2 Sec. 505.005. APPLICABILITY OF CHAPTER. (a) Facility
41-3 operators whose facilities are in SIC Codes 20-39 shall comply with
41-4 this chapter.
41-5 (b) This chapter does not apply to a hazardous chemical in a
41-6 sealed package that is received and subsequently sold or
41-7 transferred in that package if:
41-8 (1) the seal remains intact while the chemical is in
41-9 the facility;
41-10 (2) the chemical does not remain in the facility
41-11 longer than five working days; and
41-12 (3) the chemical is not an extremely hazardous
41-13 substance at or above the threshold planning quantity or 500
41-14 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
41-15 Appendices A and B.
41-16 (c) This chapter does not apply to:
41-17 (1) any hazardous waste, as that term is defined by
41-18 the federal Solid Waste Disposal Act, as amended by the Resource
41-19 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
41-20 Section 6901 et seq.), when subject to regulations issued under
41-21 that Act by the EPA;
41-22 (2) tobacco or tobacco products;
41-23 (3) wood or wood products;
41-24 (4) articles;
41-25 (5) food, drugs, cosmetics, or alcoholic beverages in
42-1 a retail food sale establishment that are packaged for sale to
42-2 consumers;
42-3 (6) foods, drugs, or cosmetics intended for personal
42-4 consumption by an employee while in the facility;
42-5 (7) any consumer product or hazardous substance, as
42-6 those terms are defined in the Consumer Product Safety Act (15
42-7 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
42-8 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
42-9 demonstrate it is used in the facility in the same manner as normal
42-10 consumer use and if the use results in a duration and frequency of
42-11 exposure that is not greater than exposures experienced by
42-12 consumers;
42-13 (8) any drug, as that term is defined by the Federal
42-14 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
42-15 it is in solid, final form for direct administration to the
42-16 patient, such as tablets or pills;
42-17 (9) the transportation, including storage incident to
42-18 that transportation, of any substance or chemical subject to this
42-19 chapter, including the transportation and distribution of natural
42-20 gas; and
42-21 (10) radioactive waste.
42-22 (d) The director shall develop an outreach program
42-23 concerning the public's ability to obtain information under this
42-24 chapter similar to the outreach program under Section 502.008.
42-25 Sec. 505.006. FACILITY CHEMICAL LIST. (a) For the purpose
43-1 of community right-to-know, a facility operator covered by this
43-2 chapter shall compile and maintain a tier two form that contains
43-3 information on hazardous chemicals present in the facility in
43-4 quantities that meet or exceed thresholds determined by the EPA in
43-5 40 CFR Part 370, or at any other reporting thresholds as determined
43-6 by board rule for certain highly toxic or extremely hazardous
43-7 substances.
43-8 (b) Multiple facilities may be reported on the same tier two
43-9 form, with appropriate facility identifiers, if the hazardous
43-10 chemicals or hazardous chemical categories present at the multiple
43-11 facilities are in the same ranges. In multiple facility
43-12 reporting, the reporting thresholds must be applied to each
43-13 facility rather than to the total quantities present at all
43-14 facilities.
43-15 (c) Each tier two form shall be filed annually with the
43-16 appropriate fee according to the procedures specified by board
43-17 rules. The facility operator shall furnish a copy of each tier two
43-18 form to the fire chief of the fire department having jurisdiction
43-19 over the facility and to the appropriate local emergency planning
43-20 committee.
43-21 (d) The tier two form shall be used to comply with the
43-22 updating requirements in EPCRA Section 311, but a fee may not be
43-23 associated with filing the report.
43-24 (e) A facility operator shall file the tier two form with
43-25 the department not later than the 90th day after the date on which
44-1 the operator begins operation or has a reportable addition, at the
44-2 appropriate threshold, of a previously unreported hazardous
44-3 chemical or extremely hazardous substance. The operator shall
44-4 furnish a copy of each tier two form to the fire chief of the fire
44-5 department having jurisdiction over the facility and to the
44-6 appropriate local emergency planning committee.
44-7 (f) A facility operator shall file a material safety data
44-8 sheet with the department on the department's request.
44-9 (g) The department shall maintain records of the tier two
44-10 forms and other documents filed under this chapter or EPCRA for at
44-11 least 30 years.
44-12 (h) Except as provided by Section 505.015, documents filed
44-13 under this chapter are subject to the open records law, Chapter
44-14 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
44-15 6252-17a, Vernon's Texas Civil Statutes).
44-16 Sec. 505.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a)
44-17 Except as otherwise provided by this section, a person may request
44-18 in writing copies of the facility's existing workplace chemical
44-19 list for community right-to-know purposes.
44-20 (b) Except as otherwise provided by this section, any
44-21 facility covered by this chapter shall furnish or mail, within 10
44-22 working days of the date of receipt of a request under Subsection
44-23 (a), either a copy of the facility's existing workplace chemical
44-24 list or a modified version of the most recent tier two form using a
44-25 500-pound threshold.
45-1 (c) Any facility that has received five requests under
45-2 Subsection (a) in a calendar month, four requests in a calendar
45-3 month for two or more months in a row, or more than 10 requests in
45-4 a year may elect to furnish the material to the department.
45-5 (d) Any facility electing to furnish the material to the
45-6 department under Subsection (c) may during that same filing period
45-7 inform persons making requests under Subsection (a) of the
45-8 availability of the information at the department and refer the
45-9 request to the department for that filing period. The notice to
45-10 persons making requests shall state the address of the department
45-11 and shall be mailed within seven days of the date of receipt of the
45-12 request, if by mail, and at the time of the request if in person.
45-13 Sec. 505.008. EMERGENCY PLANNING INFORMATION. (a) The fire
45-14 chief or the fire chief's representative, on request, may conduct
45-15 on-site inspections of the chemicals on the tier two form for the
45-16 sole purpose of planning fire department activities in case of an
45-17 emergency.
45-18 (b) A facility operator, on request, shall give the fire
45-19 chief or the local emergency planning committee such additional
45-20 information on types and amounts of hazardous chemicals present at
45-21 a facility as the requestor may need for emergency planning
45-22 purposes. A facility operator, on request, shall give the
45-23 director, the fire chief, or the local emergency planning committee
45-24 a copy of the MSDS for any chemical on the tier two form furnished
45-25 under Section 505.006 or for any chemical present at the facility.
46-1 (c) The board by rule may require certain categories of
46-2 facility operators under certain circumstances to implement the
46-3 National Fire Protection Association 704 identification system if
46-4 an equivalent system is not in use.
46-5 Sec. 505.009. COMPLAINTS AND INVESTIGATIONS. On
46-6 presentation of appropriate credentials, an officer or
46-7 representative of the director may enter a facility at reasonable
46-8 times to inspect and investigate complaints.
46-9 Sec. 505.010. ADMINISTRATIVE PENALTY. (a) The director may
46-10 assess an administrative penalty against an operator who violates
46-11 this chapter, board rules adopted under this chapter, or an order
46-12 issued under this chapter.
46-13 (b) If the department finds one or more violations of this
46-14 chapter, the director may issue a notice of violation to the
46-15 operator. The notice of violation shall specifically describe the
46-16 violation, refer to the applicable section or subsection of this
46-17 chapter, and state the amount of the penalty, if any, to be
46-18 assessed by the director.
46-19 (c) An operator who receives a notice of violation may
46-20 respond to the department in writing within 15 days of the date of
46-21 receipt of the notice of violation in one of the ways provided by
46-22 Subsection (d), (e), or (f).
46-23 (d) If the operator disputes the validity of the violation
46-24 and has reason to believe that the findings of the department were
46-25 based on inaccurate or incomplete information, the operator may
47-1 request an informal conference with representatives of the
47-2 department. The purpose of an informal conference is to permit the
47-3 operator to meet with department representatives to discuss the
47-4 basis of the violation and to provide information to the
47-5 department. The department shall schedule the informal conference.
47-6 A request for an informal conference made in bad faith is a
47-7 violation of this chapter.
47-8 (e) The operator may correct the violation and certify to
47-9 the department that the corrections have been made.
47-10 (f) The operator may request a hearing.
47-11 (g) Following an informal conference, the department shall
47-12 respond in writing to the operator, stating whether the department
47-13 intends to withdraw the notice of violation or pursue it. If the
47-14 department intends to pursue the notice of violation, the operator
47-15 may respond as provided by either Subsection (h) or (i) within 10
47-16 days of the date of receipt of the department's correspondence.
47-17 (h) The operator may correct the violation and certify to
47-18 the department that the corrections have been made.
47-19 (i) The operator may request a hearing.
47-20 (j) A request for an informal conference or a statement by
47-21 an operator that the operator is in compliance with the provisions
47-22 of this chapter does not waive the operator's right to a hearing.
47-23 (k) Except as provided in Subsection (l), the director may
47-24 not assess an administrative penalty for any violation that has
47-25 been corrected within 15 days of the date of the notice of
48-1 violation, the date of receipt of the department's response by the
48-2 employer, or 10 days after the date of receipt by the operator of
48-3 the department's response to the informal conference provided for
48-4 in Subsection (d), whichever is later.
48-5 (l) If a violation involves a failure to make a good faith
48-6 effort to comply with this chapter, the director may assess the
48-7 administrative penalty at any time.
48-8 (m) In determining the amount of the penalty, the director
48-9 shall consider:
48-10 (1) the operator's previous violations;
48-11 (2) the seriousness of the violation;
48-12 (3) any hazard to the health and safety of the public;
48-13 (4) the employer's demonstrated good faith;
48-14 (5) the duration of the violation; and
48-15 (6) other matters as justice may require.
48-16 (n) The penalty may not exceed $500 a day for each day a
48-17 violation continues, with a total not to exceed $5,000 for each
48-18 violation.
48-19 Sec. 505.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
48-20 (a) An administrative penalty may be assessed only after a
48-21 facility operator charged with a violation is given an opportunity
48-22 for a hearing.
48-23 (b) If a hearing is held, the director shall make findings
48-24 of fact and shall issue a written decision regarding the occurrence
48-25 of the violation and the amount of the penalty that may be
49-1 warranted.
49-2 (c) If the facility operator charged with the violation does
49-3 not request a hearing, the director may assess a penalty after
49-4 determining that a violation has occurred and the amount of the
49-5 penalty that may be warranted.
49-6 (d) After making a determination under this section that a
49-7 penalty is to be assessed against a facility operator, the director
49-8 shall issue an order requiring that the facility operator pay the
49-9 penalty.
49-10 (e) If a penalty is assessed on a complaint, the department
49-11 may allow the facility operator to make a grant to the local
49-12 emergency planning committee or a member organization instead of
49-13 paying the penalty. The department may specify that the operator
49-14 join the local emergency planning committee and attend all meetings
49-15 for one year or write an article, approved by the department,
49-16 concerning community right-to-know laws applicable in Texas for a
49-17 trade journal or other business publication.
49-18 (f) The director may consolidate a hearing held under this
49-19 section with another proceeding.
49-20 Sec. 505.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
49-21 REVIEW. (a) Not later than the 30th day after the date an order
49-22 finding that a violation has occurred is issued, the director shall
49-23 inform the facility operator against whom the order is issued of
49-24 the amount of the penalty for the violation.
49-25 (b) Within 30 days after the date the director's order is
50-1 final as provided by Section 16(c), Administrative Procedure and
50-2 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
50-3 Statutes), the facility operator shall:
50-4 (1) pay the amount of the penalty;
50-5 (2) pay the amount of the penalty and file a petition
50-6 for judicial review contesting the occurrence of the violation, the
50-7 amount of the penalty, or both the occurrence of the violation and
50-8 the amount of the penalty; or
50-9 (3) without paying the amount of the penalty, file a
50-10 petition for judicial review contesting the occurrence of the
50-11 violation, the amount of the penalty, or both the occurrence of the
50-12 violation and the amount of the penalty.
50-13 (c) Within the 30-day period, a facility operator who acts
50-14 under Subsection (b)(3) may:
50-15 (1) stay enforcement of the penalty by:
50-16 (A) paying the amount of the penalty to the
50-17 court for placement in an escrow account; or
50-18 (B) giving to the court a supersedeas bond that
50-19 is approved by the court for the amount of the penalty and that is
50-20 effective until all judicial review of the director's order is
50-21 final; or
50-22 (2) request the court to stay enforcement of the
50-23 penalty by:
50-24 (A) filing with the court a sworn affidavit of
50-25 the facility operator stating that the facility operator is
51-1 financially unable to pay the amount of the penalty and is
51-2 financially unable to give the supersedeas bond; and
51-3 (B) giving a copy of the affidavit to the
51-4 director by certified mail.
51-5 (d) If the director receives a copy of an affidavit under
51-6 Subsection (c)(2), the director may file with the court, within
51-7 five days after the date the copy is received, a contest to the
51-8 affidavit. The court shall hold a hearing on the facts alleged in
51-9 the affidavit as soon as practicable and shall stay the enforcement
51-10 of the penalty on finding that the alleged facts are true. The
51-11 facility operator who files an affidavit has the burden of proving
51-12 that the facility operator is financially unable to pay the amount
51-13 of the penalty and to give a supersedeas bond.
51-14 (e) If the facility operator does not pay the amount of the
51-15 penalty and the enforcement of the penalty is not stayed, the
51-16 director may refer the matter to the attorney general for
51-17 collection of the amount of the penalty.
51-18 (f) Judicial review of the order of the director:
51-19 (1) is instituted by filing a petition as provided by
51-20 Section 19, Administrative Procedure and Texas Register Act
51-21 (Article 6252-13a, Vernon's Texas Civil Statutes); and
51-22 (2) is under the substantial evidence rule.
51-23 (g) If the court sustains the occurrence of the violation,
51-24 the court may uphold or reduce the amount of the penalty and order
51-25 the facility operator to pay the full or reduced amount of the
52-1 penalty. If the court does not sustain the occurrence of the
52-2 violation, the court shall order that no penalty is owed.
52-3 (h) When the judgment of the court becomes final, the court
52-4 shall proceed under this subsection. If the facility operator paid
52-5 the amount of the penalty and if that amount is reduced or is not
52-6 upheld by the court, the court shall order that the appropriate
52-7 amount plus accrued interest be remitted to the facility operator.
52-8 The rate of the interest is the rate charged on loans to depository
52-9 institutions by the New York Federal Reserve Bank, and the interest
52-10 shall be paid for the period beginning on the date the penalty was
52-11 paid and ending on the date the penalty is remitted. If the
52-12 facility operator gave a supersedeas bond and if the amount of the
52-13 penalty is not upheld by the court, the court shall order the
52-14 release of the bond. If the facility operator gave a supersedeas
52-15 bond and if the amount of the penalty is reduced, the court shall
52-16 order the release of the bond after the facility operator pays the
52-17 amount.
52-18 (i) All proceedings under this section are subject to the
52-19 Administrative Procedure and Texas Register Act (Article 6252-13a,
52-20 Vernon's Texas Civil Statutes).
52-21 Sec. 505.013. CIVIL PENALTIES. (a) A person who knowingly
52-22 discloses false information or negligently fails to disclose a
52-23 hazard as required by this chapter is subject to a civil penalty of
52-24 not more than $5,000 for each violation.
52-25 (b) This section does not affect any other right of a person
53-1 to receive compensation under other law.
53-2 Sec. 505.014. CRIMINAL PENALTIES. (a) A person who
53-3 proximately causes an occupational disease or injury to an
53-4 individual by knowingly disclosing false information or knowingly
53-5 failing to disclose hazard information as required by this chapter
53-6 commits an offense punishable by a fine of not more than $25,000.
53-7 (b) This section does not affect any other right of a person
53-8 to receive compensation under other law.
53-9 Sec. 505.015. TRADE SECRETS. Facility operators must
53-10 substantiate trade secret claims to the administrator of the EPA in
53-11 accordance with EPCRA, Section 322.
53-12 Sec. 505.016. RULES; FEES. (a) The board may adopt rules
53-13 and administrative procedures reasonably necessary to carry out the
53-14 purposes of this chapter.
53-15 (b) The board may authorize the collection of annual fees
53-16 from facility operators for the filing of tier two forms required
53-17 by this chapter. Except as provided by Subsection (d), fees may be
53-18 used only to fund activities under this chapter. The fee for
53-19 facilities may not exceed:
53-20 (1) $100 for each required submission having no more
53-21 than 25 hazardous chemicals or hazardous chemical categories;
53-22 (2) $200 for each required submission having no more
53-23 than 50 hazardous chemicals or hazardous chemical categories;
53-24 (3) $300 for each required submission having no more
53-25 than 75 hazardous chemicals or hazardous chemical categories;
54-1 (4) $400 for each required submission having no more
54-2 than 100 hazardous chemicals or hazardous chemical categories; or
54-3 (5) $500 for each required submission having more than
54-4 100 hazardous chemicals or chemical categories.
54-5 (c) To minimize the fees, the board by rule shall provide
54-6 for consolidated filings of multiple tier two forms for facility
54-7 operators covered by Subsection (b) if each of the tier two forms
54-8 contains fewer than 25 items.
54-9 (d) The department may use up to 20 percent of the fees
54-10 collected under this section as grants to local emergency planning
54-11 committees to assist them to fulfill their responsibilities under
54-12 EPCRA. The department may use up to 15 percent of the fees
54-13 collected under this chapter and Chapter 506, or the amount of fees
54-14 paid by the state and its political subdivisions under Chapter 506,
54-15 whichever is greater, to administer Chapter 502.
54-16 CHAPTER 506. PUBLIC EMPLOYER COMMUNITY RIGHT-TO-KNOW ACT
54-17 Sec. 506.001. SHORT TITLE. This chapter may be cited as the
54-18 Public Employer Community Right-To-Know Act.
54-19 Sec. 506.002. FINDINGS; PURPOSE. (a) The legislature finds
54-20 that:
54-21 (1) the health and safety of persons living in this
54-22 state may be improved by providing access to information regarding
54-23 hazardous chemicals to which those persons may be exposed during
54-24 emergency situations or as a result of proximity to the manufacture
54-25 or use of those chemicals; and
55-1 (2) many facility operators in this state have
55-2 established suitable information programs for their communities and
55-3 that access to the information is required of most facility
55-4 operators under the federal Emergency Planning and Community
55-5 Right-To-Know Act (EPCRA).
55-6 (b) It is the intent and purpose of this chapter to ensure
55-7 that accessibility to information regarding hazardous chemical is
55-8 provided to:
55-9 (1) fire departments responsible for dealing with
55-10 chemical hazards during an emergency;
55-11 (2) local emergency planning committees and other
55-12 emergency planning organizations; and
55-13 (3) the director to make the information available to
55-14 the public through specific procedures.
55-15 Sec. 506.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
55-16 (a) In this chapter, a reference to a federal law or regulation
55-17 means a reference to the most current version of that law or
55-18 regulation.
55-19 (b) In this chapter, a reference to nomenclature systems
55-20 developed by the International Union of Pure and Applied Chemistry
55-21 (IUPAC) or the Chemical Abstracts Service (CAS), or to other
55-22 information, including information such as classification codes,
55-23 performance standards, systematic names, standards, and systems
55-24 described in publications sponsored by private technical or trade
55-25 organizations, means a reference to the most current version of the
56-1 publication.
56-2 Sec. 506.004. DEFINITIONS. In this chapter:
56-3 (1) "Article" means a manufactured item:
56-4 (A) that is formed to a specific shape or design
56-5 during manufacture;
56-6 (B) that has end-use functions dependent in
56-7 whole or in part on its shape or design during end use; and
56-8 (C) that does not release, or otherwise result
56-9 in exposure to, a hazardous chemical under normal conditions of
56-10 use.
56-11 (2) "Board" means the Texas Board of Health.
56-12 (3) "Chemical name" means:
56-13 (A) the scientific designation of a chemical in
56-14 accordance with the nomenclature system developed by the
56-15 International Union of Pure and Applied Chemistry (IUPAC) or the
56-16 Chemical Abstracts Service (CAS) rules of nomenclature; or
56-17 (B) a name that clearly identifies the chemical
56-18 for the purpose of conducting a hazard evaluation.
56-19 (4) "Common name" means a designation of
56-20 identification, such as a code name, code number, trade name, brand
56-21 name, or generic name, used to identify a chemical other than by
56-22 its chemical name.
56-23 (5) "Department" means the Texas Department of Health.
56-24 (6) "Director" means the director of the Texas
56-25 Department of Health.
57-1 (7) "EPA" means the United States Environmental
57-2 Protection Agency.
57-3 (8) "EPCRA" or "SARA Title III" means the federal
57-4 Emergency Planning and Community Right-To-Know Act, also known as
57-5 the Superfund Amendments and Reauthorization Act of 1986, Title
57-6 III, Pub. L. No. 99-499 et seq.
57-7 (9) "Extremely hazardous substance" means any
57-8 substance as defined in EPCRA, Section 302, or listed by the United
57-9 States Environmental Protection Agency in 40 CFR Part 355,
57-10 Appendices A and B.
57-11 (10) "Facility" means all buildings, equipment,
57-12 structures, and other stationary items that are located on a single
57-13 site or on contiguous or adjacent sites, that are owned or operated
57-14 by the same person, or by any person who controls, is controlled
57-15 by, or is under common control with that person and that is
57-16 operated by the state or a political subdivision of the state.
57-17 (11) "Facility operator" or "operator" means the
57-18 person who controls the day-to-day operations of the facility.
57-19 (12) "Fire chief" means the elected or paid
57-20 administrative head of a fire department.
57-21 (13) "Hazardous chemical" has the meaning given that
57-22 term by 29 CFR 1910.1200(c), except that the term does not include:
57-23 (A) any food, food additive, color additive,
57-24 drug, or cosmetic regulated by the Food and Drug Administration;
57-25 (B) any substance present as a solid in any
58-1 manufactured item to the extent exposure to the substance does not
58-2 occur under normal conditions of use;
58-3 (C) any substance to the extent that it is used
58-4 for personal, family, or household purposes, or is present in the
58-5 same form and concentration as a product packaged for distribution
58-6 and use by the public;
58-7 (D) any substance to the extent it is used in a
58-8 research laboratory or a hospital or other medical facility under
58-9 the direct supervision of a technically qualified individual; and
58-10 (E) any substance to the extent it is used in
58-11 routine agricultural operations or is a fertilizer held for sale by
58-12 a retailer to the ultimate consumer.
58-13 (14) "Health hazard" has the meaning given that term
58-14 by the OSHA standard (29 CFR 1910.1200(c)).
58-15 (15) "Identity" means any chemical or common name, or
58-16 alphabetical or numerical identification, that is indicated on the
58-17 material safety data sheet (MSDS) for the chemical. The identity
58-18 used must permit cross-references to be made among the facility
58-19 chemical list, the label, and the MSDS.
58-20 (16) "Label" means any written, printed, or graphic
58-21 material displayed on or affixed to a container of hazardous
58-22 chemicals.
58-23 (17) "Local emergency planning committee" means a
58-24 committee formed under the requirements of EPCRA, Section 301, and
58-25 recognized by the state emergency response commission for the
59-1 purposes of emergency planning and public information.
59-2 (18) "Material safety data sheet" or "MSDS" means a
59-3 document containing chemical hazard and safe handling information
59-4 that is prepared in accordance with the requirements of the OSHA
59-5 standard for that document.
59-6 (19) "OSHA standard" means the Hazard Communication
59-7 Standard issued by the Occupational Safety and Health
59-8 Administration and codified as 29 CFR Section 1910.1200.
59-9 (20) "Physical hazard" means a chemical for which
59-10 there is scientifically valid evidence that it is a combustible
59-11 liquid, a compressed gas, explosive, flammable, an organic
59-12 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
59-13 water-reactive in terms defined in the OSHA standard.
59-14 (21) "Public employer" means:
59-15 (A) the state and political subdivisions of the
59-16 state, including state, county, and municipal agencies;
59-17 (B) public schools, colleges, and universities;
59-18 (C) river authorities and publicly owned
59-19 utilities;
59-20 (D) volunteer emergency service organizations;
59-21 and
59-22 (E) other similar employers who are not covered
59-23 by the federal Occupational Safety and Health Act of 1970 (Pub. L.
59-24 No. 91-596), the federal Coal Mine Safety and Health Act of 1969
59-25 (Pub. L. No. 91-173), or the federal Mine Safety and Health
60-1 Amendments Act of 1977 (Pub. L. No. 95-164).
60-2 (22) "State emergency response commission" means the
60-3 state emergency management council or other committee appointed by
60-4 the governor in accordance with EPCRA.
60-5 (23) "Threshold planning quantity" means the minimum
60-6 quantity of an extremely hazardous substance for which a facility
60-7 owner or operator must participate in emergency planning, as
60-8 defined by the EPA pursuant to EPCRA, Section 302.
60-9 (24) "Tier two form" means:
60-10 (A) a form specified by the department under
60-11 Section 506.006 for listing hazardous chemicals as required by
60-12 EPCRA; or
60-13 (B) a form accepted by the EPA under EPCRA for
60-14 listing hazardous chemicals together with additional information
60-15 required by the department for administering its functions related
60-16 to EPCRA.
60-17 (25) "Workplace chemical list" means a list of
60-18 hazardous chemicals developed under Section 502.005(a).
60-19 Sec. 506.005. APPLICABILITY OF CHAPTER. (a) Public
60-20 employers shall comply with this chapter.
60-21 (b) This chapter does not apply to a hazardous chemical in a
60-22 sealed package that is received and subsequently sold or
60-23 transferred in that package if:
60-24 (1) the seal remains intact while the chemical is in
60-25 the facility;
61-1 (2) the chemical does not remain in the facility
61-2 longer than five working days; and
61-3 (3) the chemical is not an extremely hazardous
61-4 substance at or above the threshold planning quantity or 500
61-5 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
61-6 Appendices A and B.
61-7 (c) This chapter does not apply to:
61-8 (1) any hazardous waste as that term is defined by the
61-9 federal Solid Waste Disposal Act, as amended by the Resource
61-10 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
61-11 Section 6901 et seq.), when subject to regulations issued under
61-12 that Act by the EPA;
61-13 (2) tobacco or tobacco products;
61-14 (3) wood or wood products;
61-15 (4) articles;
61-16 (5) food, drugs, cosmetics, or alcoholic beverages in
61-17 a retail food sale establishment that are packaged for sale to
61-18 consumers;
61-19 (6) food, drugs, or cosmetics intended for personal
61-20 consumption by an employee while in the facility;
61-21 (7) any consumer product or hazardous substance, as
61-22 those terms are defined by the Consumer Product Safety Act (15
61-23 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
61-24 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
61-25 demonstrate it is used in the facility in the same manner as normal
62-1 consumer use and if the use results in a duration and frequency of
62-2 exposure that is not greater than exposures experienced by
62-3 consumers;
62-4 (8) any drug, as that term is defined by the Federal
62-5 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
62-6 it is in solid, final form for direct administration to the
62-7 patient, such as tablets or pills;
62-8 (9) the transportation, including storage incident to
62-9 that transportation, of any substance or chemical subject to this
62-10 chapter, including the transportation and distribution of natural
62-11 gas; and
62-12 (10) radioactive waste.
62-13 (d) The director shall develop an outreach program
62-14 concerning the public's ability to obtain information under this
62-15 chapter similar to the outreach program under Section 502.008.
62-16 Sec. 506.006. FACILITY CHEMICAL LIST. (a) For the purpose
62-17 of community right-to-know, a facility operator covered by this
62-18 chapter shall compile and maintain a tier two form that contains
62-19 information on hazardous chemicals present in the facility in
62-20 quantities that meet or exceed thresholds determined by the EPA in
62-21 40 CFR Part 370, or at any other reporting thresholds as determined
62-22 by board rule for certain highly toxic or extremely hazardous
62-23 substances.
62-24 (b) Multiple facilities may be reported on the same tier two
62-25 form, with appropriate facility identifiers, if the hazardous
63-1 chemicals or hazardous chemical categories present at the multiple
63-2 facilities are in the same ranges. In multiple facility
63-3 reporting, the reporting thresholds must be applied to each
63-4 facility rather than to the total quantities present at all
63-5 facilities.
63-6 (c) Each tier two form shall be filed annually with the
63-7 appropriate fee according to the procedures specified by board
63-8 rules. The facility operator shall furnish a copy of each tier two
63-9 form to the fire chief of the fire department having jurisdiction
63-10 over the facility and to the appropriate local emergency planning
63-11 committee.
63-12 (d) A facility operator shall file the tier two form with
63-13 the department not later than the 90th day after the date on which
63-14 the operator begins operation or has a reportable addition, at the
63-15 appropriate threshold, of a previously unreported hazardous
63-16 chemical or extremely hazardous substance, but a fee may not be
63-17 associated with filing this report. The operator shall furnish a
63-18 copy of each tier two form to the fire chief of the fire department
63-19 having jurisdiction over the facility and to the appropriate local
63-20 emergency planning committee.
63-21 (e) A facility operator shall file a material safety data
63-22 sheet with the department on the department's request.
63-23 (f) The department shall maintain records of the tier two
63-24 forms and other documents filed under this chapter or EPCRA for at
63-25 least 30 years.
64-1 (g) Documents filed under this chapter are subject to the
64-2 open records law, Chapter 424, Acts of the 63rd Legislature,
64-3 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
64-4 Statutes).
64-5 Sec. 506.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a)
64-6 Except as otherwise provided by this section, a person may request
64-7 in writing copies of the facility's existing workplace chemical
64-8 list for community right-to-know purposes.
64-9 (b) Except as otherwise provided by this section, any
64-10 facility covered by this chapter shall furnish or mail, within 10
64-11 working days of the date of receipt of a request under Subsection
64-12 (a), either a copy of the facility's existing workplace chemical
64-13 list or a modified version of the most recent tier two form using a
64-14 500-pound threshold.
64-15 (c) Any facility that has received five requests under
64-16 Subsection (a) in a calendar month, four requests in a calendar
64-17 month for two or more months in a row, or more than 10 requests in
64-18 a year may elect to furnish the material to the department.
64-19 (d) Any facility electing to furnish the material to the
64-20 department under Subsection (c) may during that same filing period
64-21 inform persons making requests under Subsection (a) of the
64-22 availability of the information at the department and refer the
64-23 request to the department for that filing period. The notice to
64-24 persons making requests shall state the address of the department
64-25 and shall be mailed within seven days of the date of receipt of the
65-1 request, if by mail, and at the time of the request if in person.
65-2 Sec. 506.008. EMERGENCY PLANNING INFORMATION. (a) The fire
65-3 chief or the fire chief's representative, on request, may conduct
65-4 on-site inspections of the chemicals on the tier two form for the
65-5 sole purpose of planning fire department activities in case of an
65-6 emergency.
65-7 (b) A facility operator, on request, shall give the fire
65-8 chief or the local emergency planning committee such additional
65-9 information on types and amounts of hazardous chemicals present at
65-10 a facility as the requestor may need for emergency planning
65-11 purposes. A facility operator, on request, shall give the
65-12 director, the fire chief, or the local emergency planning committee
65-13 a copy of the MSDS for any chemical on the tier two form furnished
65-14 under Section 506.006 or for any chemical present at the facility.
65-15 (c) The board by rule may require certain categories of
65-16 facility operators under certain circumstances to implement the
65-17 National Fire Protection Association 704 identification system if
65-18 an equivalent system is not in use.
65-19 Sec. 506.009. COMPLAINTS AND INVESTIGATIONS. On
65-20 presentation of appropriate credentials, an officer or
65-21 representative of the director may enter a facility at reasonable
65-22 times to inspect and investigate complaints.
65-23 Sec. 506.010. ADMINISTRATIVE PENALTY. (a) The director may
65-24 assess an administrative penalty against an operator who violates
65-25 this chapter, board rules adopted under this chapter, or an order
66-1 issued under this chapter.
66-2 (b) If the department finds one or more violations of this
66-3 chapter, the director may issue a notice of violation to the
66-4 operator. The notice of violation shall specifically describe the
66-5 violation, refer to the applicable section or subsection of this
66-6 chapter, and state the amount of the penalty, if any, to be
66-7 assessed by the director.
66-8 (c) An operator who receives a notice of violation may
66-9 respond to the department in writing within 15 days of the date of
66-10 receipt of the notice of violation in one of the ways provided by
66-11 Subsection (d), (e), or (f).
66-12 (d) If the operator disputes the validity of the violation
66-13 and has reason to believe that the findings of the department were
66-14 based on inaccurate or incomplete information, the operator may
66-15 request an informal conference with representatives of the
66-16 department. The purpose of an informal conference is to permit the
66-17 operator to meet with department representatives to discuss the
66-18 basis of the violation and to provide information to the
66-19 department. The department shall schedule the informal conference.
66-20 A request for an informal conference made in bad faith is a
66-21 violation of this chapter.
66-22 (e) The operator may correct the violation and certify to
66-23 the department that the corrections have been made.
66-24 (f) The operator may request a hearing.
66-25 (g) Following an informal conference, the department shall
67-1 respond in writing to the operator, stating whether the department
67-2 intends to withdraw the notice of violation or pursue it. If the
67-3 department intends to pursue the notice of violation, the operator
67-4 may respond as provided by Subsection (h) or (i) within 10 days of
67-5 the date of receipt of the department's correspondence.
67-6 (h) The operator may correct the violation and certify to
67-7 the department that the corrections have been made.
67-8 (i) The operator may request a hearing.
67-9 (j) A request for an informal conference or a statement by
67-10 an operator that the operator is in compliance with the provisions
67-11 of this chapter does not waive the operator's right to a hearing.
67-12 (k) The director may not assess an administrative penalty
67-13 for any violation that has been corrected within 15 days of the
67-14 date of receipt of the notice of violation, the date of receipt of
67-15 the department's response by the employer, or 10 days after the
67-16 date of receipt by the operator of the department's response to the
67-17 informal conference provided for in Subsection (d), whichever is
67-18 later.
67-19 (l) In determining the amount of the penalty, the director
67-20 shall consider:
67-21 (1) the operator's previous violations;
67-22 (2) the seriousness of the violation;
67-23 (3) any hazard to the health and safety of the public;
67-24 (4) the employer's demonstrated good faith;
67-25 (5) the duration of the violation; and
68-1 (6) other matters as justice may require.
68-2 (m) The penalty may not exceed $50 a day for each day a
68-3 violation continues, with a total not to exceed $1,000 for each
68-4 violation.
68-5 Sec. 506.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
68-6 (a) An administrative penalty may be assessed only after a
68-7 facility operator charged with a violation is given an opportunity
68-8 for a hearing.
68-9 (b) If a hearing is held, the director shall make findings
68-10 of fact and shall issue a written decision regarding the occurrence
68-11 of the violation and the amount of the penalty that may be
68-12 warranted.
68-13 (c) If the facility operator charged with the violation does
68-14 not request a hearing, the director may assess a penalty after
68-15 determining that a violation has occurred and the amount of the
68-16 penalty that may be warranted.
68-17 (d) After making a determination under this section that a
68-18 penalty is to be assessed against a facility operator, the director
68-19 shall issue an order requiring that the facility operator pay the
68-20 penalty.
68-21 (e) If a penalty is assessed on a complaint, the department
68-22 may allow the facility operator to make a grant to the local
68-23 emergency planning committee or a member organization instead of
68-24 paying the penalty. The department may specify that the operator
68-25 join the local emergency planning committee and attend all meetings
69-1 for one year or write an article, approved by the department,
69-2 concerning community right-to-know laws applicable in Texas for a
69-3 trade journal or other business publication.
69-4 (f) The director may consolidate a hearing held under this
69-5 section with another proceeding.
69-6 Sec. 506.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
69-7 REVIEW. (a) Not later than the 30th day after the date an order
69-8 finding that a violation has occurred is issued, the director shall
69-9 inform the facility operator against whom the order is issued of
69-10 the amount of the penalty for the violation.
69-11 (b) Except as provided in Section 506.011(e), not later than
69-12 the 30th day after the date on which a decision or order charging a
69-13 facility operator with a penalty is final, the facility operator
69-14 shall pay the penalty in full, unless the facility operator seeks
69-15 judicial review of the amount of the penalty, the fact of the
69-16 violation, or both. The board may by rule provide for appeals by
69-17 the state and political subdivisions of the state.
69-18 Sec. 506.013. REFUND OF ADMINISTRATIVE PENALTY. Not later
69-19 than the 30th day after the date of a judicial determination that
69-20 an administrative penalty against a facility operator should be
69-21 reduced or not assessed, the director shall remit to the facility
69-22 operator the appropriate amount of any penalty payment already paid
69-23 plus accrued interest.
69-24 Sec. 506.014. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
69-25 GENERAL. The attorney general at the request of the director may
70-1 bring a civil action to recover an administrative penalty under
70-2 this chapter.
70-3 Sec. 506.015. CIVIL PENALTIES. (a) A person who knowingly
70-4 discloses false information or negligently fails to disclose a
70-5 hazard as required by this chapter is subject to a civil penalty of
70-6 not more than $5,000 for each violation.
70-7 (b) This section does not affect any other right of a person
70-8 to receive compensation under other law.
70-9 Sec. 506.016. CRIMINAL PENALTIES. (a) A person who
70-10 proximately causes an occupational disease or injury to an
70-11 individual by knowingly disclosing false information or knowingly
70-12 failing to disclose hazard information as required by this chapter
70-13 commits an offense punishable by a fine of not more than $25,000.
70-14 (b) This section does not affect any other right of a person
70-15 to receive compensation under other law.
70-16 Sec. 506.017. RULES; FEES. (a) The board may adopt rules
70-17 and administrative procedures reasonably necessary to carry out the
70-18 purposes of this chapter.
70-19 (b) The board may authorize the collection of annual fees
70-20 from facility operators for the filing of tier two forms required
70-21 by this chapter. The fee may not exceed:
70-22 (1) $50 for each required submission having no more
70-23 than 75 hazardous chemicals or hazardous chemical categories; or
70-24 (2) $100 for each required submission having more than
70-25 75 hazardous chemicals or chemical categories.
71-1 (c) To minimize the fees, the board by rule shall provide
71-2 for consolidated filings of multiple tier two forms for facility
71-3 operators covered by Subsection (b) if each of the tier two forms
71-4 contains fewer than 25 items.
71-5 (d) The department may use up to 15 percent of the fees
71-6 collected under Chapter 505 and this chapter, or the amount of fees
71-7 paid by the state and its political subdivisions under this
71-8 chapter, whichever is greater, to administer Chapter 502.
71-9 CHAPTER 507. NONMANUFACTURING FACILITIES COMMUNITY
71-10 RIGHT-TO-KNOW ACT
71-11 Sec. 507.001. SHORT TITLE. This chapter may be cited as the
71-12 Nonmanufacturing Facilities Community Right-To-Know Act.
71-13 Sec. 507.002. FINDINGS; PURPOSE. (a) The legislature finds
71-14 that:
71-15 (1) the health and safety of persons living in this
71-16 state may be improved by providing access to information regarding
71-17 hazardous chemicals to which those persons may be exposed during
71-18 emergency situations or as a result of proximity to the use of
71-19 those chemicals; and
71-20 (2) many facility operators in this state have
71-21 established suitable information programs for their communities and
71-22 that access to the information is required of most facility
71-23 operators under the federal Emergency Planning and Community
71-24 Right-To-Know Act (EPCRA).
71-25 (b) It is the intent and purpose of this chapter to ensure
72-1 that accessibility to information regarding hazardous chemicals is
72-2 provided to:
72-3 (1) fire departments responsible for dealing with
72-4 chemical hazards during an emergency;
72-5 (2) local emergency planning committees and other
72-6 emergency planning organizations; and
72-7 (3) the director to make the information available to
72-8 the public through specific procedures.
72-9 Sec. 507.003. FEDERAL LAWS AND REGULATIONS. In this
72-10 chapter, a reference to a federal law or regulation means a
72-11 reference to the most current version of that law or regulation.
72-12 Sec. 507.004. DEFINITIONS. In this chapter:
72-13 (1) "Article" means a manufactured item:
72-14 (A) that is formed to a specific shape or design
72-15 during manufacture;
72-16 (B) that has end-use functions dependent in
72-17 whole or in part on its shape or design during end use; and
72-18 (C) that does not release, or otherwise result
72-19 in exposure to, a hazardous chemical under normal conditions of
72-20 use.
72-21 (2) "Board" means the Texas Board of Health.
72-22 (3) "Chemical name" means:
72-23 (A) the scientific designation of a chemical in
72-24 accordance with the nomenclature system developed by the
72-25 International Union of Pure and Applied Chemistry (IUPAC) or the
73-1 Chemical Abstracts Service (CAS) rules of nomenclature; or
73-2 (B) a name that clearly identifies the chemical
73-3 for the purpose of conducting a hazard evaluation.
73-4 (4) "Common name" means a designation of
73-5 identification, such as a code name, code number, trade name, brand
73-6 name, or generic name, used to identify a chemical other than by
73-7 its chemical name.
73-8 (5) "Department" means the Texas Department of Health.
73-9 (6) "Director" means the director of the Texas
73-10 Department of Health.
73-11 (7) "EPA" means the United States Environmental
73-12 Protection Agency.
73-13 (8) "EPCRA" or "SARA Title III" means the federal
73-14 Emergency Planning and Community Right-To-Know Act, also known as
73-15 the Superfund Amendments and Reauthorization Act of 1986, Title
73-16 III, Pub. L. No. 99-499 et seq.
73-17 (9) "Extremely hazardous substance" means any
73-18 substance as defined in EPCRA, Section 302, or listed by the United
73-19 States Environmental Protection Agency in 40 CFR Part 355,
73-20 Appendices A and B.
73-21 (10) "Facility" means all buildings, equipment,
73-22 structures, and other stationary items that are located on a single
73-23 site or on contiguous or adjacent sites and that are owned or
73-24 operated by the same person or by any person who controls, is
73-25 controlled by, or is under common control with that person. The
74-1 term does not include a facility subject to Chapter 505 or 506.
74-2 (11) "Facility operator" or "operator" means the
74-3 person who controls the day-to-day operations of the facility.
74-4 (12) "Fire chief" means the elected or paid
74-5 administrative head of a fire department.
74-6 (13) "Hazardous chemical" has the meaning given that
74-7 term by 29 CFR 1910.1200(c), except that the term does not include:
74-8 (A) any food, food additive, color additive,
74-9 drug, or cosmetic regulated by the Food and Drug Administration;
74-10 (B) any substance present as a solid in any
74-11 manufactured item to the extent exposure to the substance does not
74-12 occur under normal conditions of use;
74-13 (C) any substance to the extent that it is used
74-14 for personal, family, or household purposes, or is present in the
74-15 same form and concentration as a product packaged for distribution
74-16 and use by the general public;
74-17 (D) any substance to the extent it is used in a
74-18 research laboratory or a hospital or other medical facility under
74-19 the direct supervision of a technically qualified individual; and
74-20 (E) any substance to the extent it is used in
74-21 routine agricultural operations or is a fertilizer held for sale by
74-22 a retailer to the ultimate consumer.
74-23 (14) "Health hazard" has the meaning given that term
74-24 by the OSHA standard (29 CFR 1910.1200(c)).
74-25 (15) "Identity" means a chemical or common name, or
75-1 alphabetical or numerical identification, that is indicated on the
75-2 material safety data sheet (MSDS) for the chemical. The identity
75-3 used must permit cross-references to be made among the facility
75-4 chemical list, the label, and the MSDS.
75-5 (16) "Label" means any written, printed, or graphic
75-6 material displayed on or affixed to a container of hazardous
75-7 chemicals.
75-8 (17) "Local emergency planning committee" means a
75-9 committee formed under the requirements of EPCRA, Section 301, and
75-10 recognized by the state emergency response commission for the
75-11 purposes of emergency planning and public information.
75-12 (18) "Material safety data sheet" or "MSDS" means a
75-13 document containing chemical hazard and safe handling information
75-14 that is prepared in accordance with the requirements of the OSHA
75-15 standard for that document.
75-16 (19) "OSHA standard" means the Hazard Communication
75-17 Standard issued by the Occupational Safety and Health
75-18 Administration and codified as 29 CFR Section 1910.1200.
75-19 (20) "Physical hazard" means a chemical for which
75-20 there is scientifically valid evidence that it is a combustible
75-21 liquid, a compressed gas, explosive, flammable, an organic
75-22 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
75-23 water-reactive in terms defined in the OSHA standard.
75-24 (21) "State emergency response commission" means the
75-25 state emergency management council or other committee appointed by
76-1 the governor in accordance with EPCRA.
76-2 (22) "Threshold planning quantity" means the minimum
76-3 quantity of an extremely hazardous substance for which a facility
76-4 owner or operator must participate in emergency planning, as
76-5 defined by the EPA pursuant to EPCRA, Section 302.
76-6 (23) "Tier two form" means:
76-7 (A) a form specified by the department under
76-8 Section 507.006 for listing hazardous chemicals as required by
76-9 EPCRA; or
76-10 (B) a form accepted by the EPA under EPCRA for
76-11 listing hazardous chemicals together with additional information
76-12 required by the department for administering its functions related
76-13 to EPCRA.
76-14 Sec. 507.005. APPLICABILITY OF CHAPTER. (a) Facility
76-15 operators who are not subject to Chapter 505 or 506 shall comply
76-16 with this chapter.
76-17 (b) This chapter does not apply to a hazardous chemical in a
76-18 sealed package that is received and subsequently sold or
76-19 transferred in that package if:
76-20 (1) the seal remains intact while the chemical is in
76-21 the facility;
76-22 (2) the chemical does not remain in the facility
76-23 longer than five working days; and
76-24 (3) the chemical is not an extremely hazardous
76-25 substance at or above the threshold planning quantity or 500
77-1 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
77-2 Appendices A and B.
77-3 (c) This chapter does not apply to:
77-4 (1) any hazardous waste as that term is defined by the
77-5 federal Solid Waste Disposal Act, as amended by the Resource
77-6 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
77-7 Section 6901 et seq.), when subject to regulations issued under
77-8 that Act by the EPA;
77-9 (2) tobacco or tobacco products;
77-10 (3) wood or wood products;
77-11 (4) articles;
77-12 (5) food, drugs, cosmetics, or alcoholic beverages in
77-13 a retail food sale establishment that are packaged for sale to
77-14 consumers;
77-15 (6) food, drugs, or cosmetics intended for personal
77-16 consumption by an employee while in the facility;
77-17 (7) any consumer product or hazardous substance, as
77-18 those terms are defined by the Consumer Product Safety Act (15
77-19 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
77-20 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
77-21 demonstrate it is used in the facility in the same manner as normal
77-22 consumer use and if the use results in a duration and frequency of
77-23 exposure that is not greater than exposures experienced by
77-24 consumers;
77-25 (8) any drug, as that term is defined by the Federal
78-1 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
78-2 it is in solid, final form for direct administration to the
78-3 patient, such as tablets or pills;
78-4 (9) the transportation, including storage incident to
78-5 that transportation, of any substance or chemical subject to this
78-6 chapter, including the transportation and distribution of natural
78-7 gas; and
78-8 (10) radioactive waste.
78-9 (d) The director shall develop an outreach program
78-10 concerning the public's ability to obtain information under this
78-11 chapter similar to the outreach program under Section 502.008.
78-12 Sec. 507.006. FACILITY CHEMICAL LIST. (a) For the purpose
78-13 of community right-to-know, a facility operator covered by this
78-14 chapter shall compile and maintain a tier two form that contains
78-15 information on hazardous chemicals present in the facility in
78-16 quantities that meet or exceed thresholds determined by the EPA in
78-17 40 CFR Part 370, or at any other reporting thresholds as determined
78-18 by board rule for certain highly toxic or extremely hazardous
78-19 substances.
78-20 (b) Multiple facilities may be reported on the same tier two
78-21 form, with appropriate facility identifiers, if the hazardous
78-22 chemicals or hazardous chemical categories present at the multiple
78-23 facilities are in the same ranges. In multiple facility reporting,
78-24 the reporting thresholds must be applied to each facility rather
78-25 than to the total quantities present at all facilities.
79-1 (c) Each tier two form shall be filed annually with the
79-2 appropriate fee according to the procedures specified by board
79-3 rules. The facility operator shall furnish a copy of each tier two
79-4 form to the fire chief of the fire department having jurisdiction
79-5 over the facility and to the appropriate local emergency planning
79-6 committee.
79-7 (d) The tier two form shall be used to comply with the
79-8 updating requirements in EPCRA, Section 311, but a fee may not be
79-9 associated with filing the report.
79-10 (e) A facility operator shall file the tier two form with
79-11 the department not later than the 90th day after the date on which
79-12 the operator begins operation or has a reportable addition, at the
79-13 appropriate threshold, of a previously unreported hazardous
79-14 chemical or extremely hazardous substance. The operator shall
79-15 furnish a copy of each tier two form to the fire chief of the fire
79-16 department having jurisdiction over the facility and to the
79-17 appropriate local emergency planning committee.
79-18 (f) A facility operator shall file a material safety data
79-19 sheet with the department on the department's request.
79-20 (g) The department shall maintain records of the tier two
79-21 forms and other documents filed under this chapter or EPCRA for at
79-22 least 30 years.
79-23 (h) Except as provided by Section 507.012, documents filed
79-24 under this chapter are subject to the open records law, Chapter
79-25 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
80-1 6252-17a, Vernon's Texas Civil Statutes).
80-2 Sec. 507.007. EMERGENCY PLANNING INFORMATION. (a) The fire
80-3 chief or the fire chief's representative, on request, may conduct
80-4 on-site inspections of the chemicals on the tier two form for the
80-5 sole purpose of planning fire department activities in case of an
80-6 emergency.
80-7 (b) A facility operator, on request, shall give the fire
80-8 chief or the local emergency planning committee such additional
80-9 information on types and amounts of hazardous chemicals present at
80-10 a facility as the requestor may need for emergency planning
80-11 purposes. A facility operator, on request, shall give the
80-12 director, the fire chief, or the local emergency planning committee
80-13 a copy of the MSDS for any chemical on the tier two form furnished
80-14 under Section 507.006 or for any chemical present at the facility.
80-15 (c) The board by rule may require certain categories of
80-16 facility operators under certain circumstances to implement the
80-17 National Fire Protection Association 704 identification system if
80-18 an equivalent system is not in use.
80-19 Sec. 507.008. COMPLAINTS AND INVESTIGATIONS. On
80-20 presentation of appropriate credentials, an officer or
80-21 representative of the director may enter a facility at reasonable
80-22 times to inspect and investigate complaints.
80-23 Sec. 507.009. ADMINISTRATIVE PENALTY. (a) The director may
80-24 assess an administrative penalty against a facility operator who
80-25 violates this chapter, board rules adopted under this chapter, or
81-1 an order issued under this chapter.
81-2 (b) If the department finds one or more violations of this
81-3 chapter, the director may issue a notice of violation to the
81-4 operator. The notice of violation shall specifically describe the
81-5 violation, refer to the applicable section or subsection of this
81-6 chapter, and state the amount of the penalty, if any, to be
81-7 assessed by the director.
81-8 (c) An operator who receives a notice of violation may
81-9 respond to the department in writing within 15 days of the date of
81-10 receipt of the notice of violation in one of the ways provided by
81-11 Subsection (d), (e), or (f).
81-12 (d) If the operator disputes the validity of the violation
81-13 and has reason to believe that the findings of the department were
81-14 based on inaccurate or incomplete information, the operator may
81-15 request an informal conference with representatives of the
81-16 department. The purpose of an informal conference is to permit the
81-17 operator to meet with department representatives to discuss the
81-18 basis of the violation and to provide information to the
81-19 department. The department shall schedule the informal conference.
81-20 A request for an informal conference made in bad faith is a
81-21 violation of this chapter.
81-22 (e) The operator may correct the violation and certify to
81-23 the department that the corrections have been made.
81-24 (f) The operator may request a hearing.
81-25 (g) Following an informal conference, the department shall
82-1 respond in writing to the operator, stating whether the department
82-2 intends to withdraw the notice of violation or pursue it. If the
82-3 department intends to pursue the notice of violation, the operator
82-4 may respond as provided by either Subsection (h) or (i) within 10
82-5 days of the date of receipt of the department's correspondence.
82-6 (h) The operator may correct the violation and certify to
82-7 the department that the corrections have been made.
82-8 (i) The operator may request a hearing.
82-9 (j) A request for an informal conference or a statement by
82-10 an operator that the operator is in compliance with the provisions
82-11 of this chapter does not waive the operator's right to a hearing.
82-12 (k) Except as provided in Subsection (l), the director may
82-13 not assess an administrative penalty for any violation that has
82-14 been corrected within 15 days of the date of receipt of the notice
82-15 of violation, the date of receipt of the department's response by
82-16 the employer, or 10 days after the date of receipt by the operator
82-17 of the department's response to the informal conference provided
82-18 for in Subsection (d), whichever is later.
82-19 (l) If a violation involves a failure to make a good-faith
82-20 effort to comply with this chapter, the director may assess the
82-21 administrative penalty at any time.
82-22 (m) In determining the amount of the penalty, the director
82-23 shall consider:
82-24 (1) the operator's previous violations;
82-25 (2) the seriousness of the violation;
83-1 (3) any hazard to the health and safety of the public;
83-2 (4) the operator's demonstrated good faith;
83-3 (5) the duration of the violation; and
83-4 (6) other matters as justice may require.
83-5 (n) The penalty may not exceed $50 for each day a violation
83-6 continues, with a total not to exceed $1,000 for each violation.
83-7 Sec. 507.010. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
83-8 (a) An administrative penalty may be assessed only after a
83-9 facility operator charged with a violation is given an opportunity
83-10 for a hearing.
83-11 (b) If a hearing is held, the director shall make findings
83-12 of fact and shall issue a written decision regarding the occurrence
83-13 of the violation and the amount of the penalty that may be
83-14 warranted.
83-15 (c) If the facility operator charged with the violation does
83-16 not request a hearing, the director may assess a penalty after
83-17 determining that a violation has occurred and the amount of the
83-18 penalty that may be warranted.
83-19 (d) After making a determination under this section that a
83-20 penalty is to be assessed against a facility operator, the director
83-21 shall issue an order requiring that the facility operator pay the
83-22 penalty.
83-23 (e) If a penalty is assessed on a complaint, the department
83-24 may allow the facility operator to make a grant to the local
83-25 emergency planning committee or a member organization instead of
84-1 paying the penalty. The department may specify that the operator
84-2 join the local emergency planning committee and attend all meetings
84-3 for one year or write an article, approved by the department,
84-4 concerning community right-to-know laws applicable in Texas for a
84-5 trade journal or other business publication.
84-6 (f) The director may consolidate a hearing held under this
84-7 section with another proceeding.
84-8 Sec. 507.011. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
84-9 REVIEW. (a) Not later than the 30th day after the date an order
84-10 finding that a violation has occurred is issued, the director shall
84-11 inform the facility operator against whom the order is issued of
84-12 the amount of the penalty for the violation.
84-13 (b) Except as provided by Section 507.010(e), within 30 days
84-14 after the date the director's order is final as provided by Section
84-15 16(c), Administrative Procedure and Texas Register Act (Article
84-16 6252-13a, Vernon's Texas Civil Statutes), the facility operator
84-17 shall:
84-18 (1) pay the amount of the penalty;
84-19 (2) pay the amount of the penalty and file a petition
84-20 for judicial review contesting the occurrence of the violation, the
84-21 amount of the penalty, or both the occurrence of the violation and
84-22 the amount of the penalty; or
84-23 (3) without paying the amount of the penalty, file a
84-24 petition for judicial review contesting the occurrence of the
84-25 violation, the amount of the penalty, or both the occurrence of the
85-1 violation and the amount of the penalty.
85-2 (c) Within the 30-day period, a facility operator who acts
85-3 under Subsection (b)(3) may:
85-4 (1) stay enforcement of the penalty by:
85-5 (A) paying the amount of the penalty to the
85-6 court for placement in an escrow account; or
85-7 (B) giving to the court a supersedeas bond that
85-8 is approved by the court for the amount of the penalty and that is
85-9 effective until all judicial review of the director's order is
85-10 final; or
85-11 (2) request the court to stay enforcement of the
85-12 penalty by:
85-13 (A) filing with the court a sworn affidavit of
85-14 the facility operator stating that the facility operator is
85-15 financially unable to pay the amount of the penalty and is
85-16 financially unable to give the supersedeas bond; and
85-17 (B) giving a copy of the affidavit to the
85-18 executive director by certified mail.
85-19 (d) If the director receives a copy of an affidavit under
85-20 Subsection (c)(2), the director may file with the court, within
85-21 five days after the date the copy is received, a contest to the
85-22 affidavit. The court shall hold a hearing on the facts alleged in
85-23 the affidavit as soon as practicable and shall stay the enforcement
85-24 of the penalty on finding that the alleged facts are true. The
85-25 facility operator who files an affidavit has the burden of proving
86-1 that the facility operator is financially unable to pay the amount
86-2 of the penalty and to give a supersedeas bond.
86-3 (e) If the facility operator does not pay the amount of the
86-4 penalty and the enforcement of the penalty is not stayed, the
86-5 director may refer the matter to the attorney general for
86-6 collection of the amount of the penalty.
86-7 (f) Judicial review of the order of the director:
86-8 (1) is instituted by filing a petition as provided by
86-9 Section 19, Administrative Procedure and Texas Register Act
86-10 (Article 6252-13a, Vernon's Texas Civil Statutes); and
86-11 (2) is under the substantial evidence rule.
86-12 (g) If the court sustains the occurrence of the violation,
86-13 the court may uphold or reduce the amount of the penalty and order
86-14 the facility operator to pay the full or reduced amount of the
86-15 penalty. If the court does not sustain the occurrence of the
86-16 violation, the court shall order that no penalty is owed.
86-17 (h) When the judgment of the court becomes final, the court
86-18 shall proceed under this subsection. If the facility operator paid
86-19 the amount of the penalty and if that amount is reduced or is not
86-20 upheld by the court, the court shall order that the appropriate
86-21 amount plus accrued interest be remitted to the facility operator.
86-22 The rate of the interest is the rate charged on loans to depository
86-23 institutions by the New York Federal Reserve Bank, and the interest
86-24 shall be paid for the period beginning on the date the penalty was
86-25 paid and ending on the date the penalty is remitted. If the
87-1 facility operator gave a supersedeas bond and if the amount of the
87-2 penalty is not upheld by the court, the court shall order the
87-3 release of the bond. If the facility operator gave a supersedeas
87-4 bond and if the amount of the penalty is reduced, the court shall
87-5 order the release of the bond after the facility operator pays the
87-6 amount.
87-7 (i) All proceedings under this section are subject to the
87-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
87-9 Vernon's Texas Civil Statutes).
87-10 Sec. 507.012. TRADE SECRETS. Facility operators must
87-11 substantiate trade secret claims to the administrator of the EPA in
87-12 accordance with EPCRA, Section 322.
87-13 Sec. 507.013. RULES; FEES. (a) The board may adopt rules
87-14 and administrative procedures reasonably necessary to carry out the
87-15 purposes of this chapter.
87-16 (b) The board may authorize the collection of annual fees
87-17 from facility operators for the filing of tier two forms required
87-18 by this chapter. Except as provided by Subsection (d), fees may be
87-19 used only to fund activities under this chapter. The fee may not
87-20 exceed:
87-21 (1) $50 for each required submission having no more
87-22 than 75 hazardous chemicals or hazardous chemical categories; or
87-23 (2) $100 for each required submission having more than
87-24 75 hazardous chemicals or chemical categories.
87-25 (c) To minimize the fees, the board by rule shall provide
88-1 for consolidated filings of multiple tier two forms for facility
88-2 operators covered by Subsection (b) if each of the tier two forms
88-3 contains fewer than 25 items.
88-4 (d) The department may use up to 20 percent of the fees
88-5 collected under this section as grants to local emergency planning
88-6 committees to assist them to fulfill their responsibilities under
88-7 EPCRA.
88-8 SECTION 3. This Act takes effect September 1, 1993.
88-9 SECTION 4. The importance of this legislation and the
88-10 crowded condition of the calendars in both houses create an
88-11 emergency and an imperative public necessity that the
88-12 constitutional rule requiring bills to be read on three several
88-13 days in each house be suspended, and this rule is hereby suspended.