By Saunders H.B. No. 1431
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the Hazard Communication Act, Manufacturing Facility
1-3 and Public Employer Community Right-to-Know Act, and the
1-4 Non-Manufacturing Facilities community Right-to-Know Act; providing
1-5 separate employee right-to-know and community right-to-know
1-6 requirements; providing for the collection of fees; and providing
1-7 administrative, civil, and criminal penalties.
1-8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-9 SECTION 1. Chapter 502, Health and Safety Code, is amended
1-10 to read as follows:
1-11 CHAPTER 502. HAZARD COMMUNICATION ACT
1-12 Sec. 502.001. Short Title. This chapter may be cited as the
1-13 Hazard Communication Act.
1-14 Sec. 502.002. Findings; Purpose. (a) The legislature finds
1-15 that:
1-16 (1) the health and safety of persons <living and>
1-17 working in this state may be improved by providing access to
1-18 information regarding hazardous chemicals to which those persons
1-19 may be exposed during normal employment activities<, during
1-20 emergency situations, or as a result of proximity to the
1-21 manufacture or use of those chemicals>; and
1-22 (2) many employers in this state have established
1-23 suitable information programs for their employees and that access
2-1 to the information is required of all manufacturing employers under
2-2 the federal Occupational Safety and Health Administration's (OSHA)
2-3 Hazard Communication Standard.
2-4 (b) It is the intent and purpose of this chapter to assure
2-5 that, if the OSHA standard is not in effect, accessibility to
2-6 information regarding hazardous chemicals in the workplace is
2-7 provided to<:>
2-8 <(1)> employees who may be exposed to those chemicals
2-9 in manufacturing or nonmanufacturing employer 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 employee public through specific procedures>.
2-14 Sec. 502.003. Definitions. In this chapter:
2-15 (1) "Board" means the Texas Board of Health.
2-16 (2) "Chemical manufacturer" means an employer in
2-17 Standard Industrial Classification (SIC) Codes 20-39 with a
2-18 workplace where chemicals are produced for use or distribution.
2-19 (3) "Chemical name" means:
2-20 (A) the scientific designation of a chemical in
2-21 accordance with the nomenclature system developed by the
2-22 International Union of Pure and Applied Chemistry (IUPAC) or the
2-23 Chemical Abstracts Service (CAS) rules of nomenclature; or
2-24 (B) a name that clearly identifies the chemical
2-25 for the purpose of conducting a hazard evaluation.
3-1 (4) "Commissioner" means the commissioner of health.
3-2 (5) "Common name" means a designation of
3-3 identification, such as a code name, code number, trade name, brand
3-4 name, or generic name, used to identify a chemical other than by
3-5 its chemical name.
3-6 (6) "Department" means the Texas Department of Health.
3-7 (7) "Designated representative" means the individual
3-8 or organization to whom an employee gives written authorization to
3-9 exercise the employee's rights under this chapter, except that a
3-10 recognized or certified collective bargaining agent is a designated
3-11 representative regardless of written employee authorization.
3-12 (8) "Distributor" means a business, other than a
3-13 chemical manufacturer or importer, that supplies hazardous
3-14 chemicals to other distributors or to purchasers.
3-15 (9) "Employee" means a person who may be or may have
3-16 been exposed to hazardous chemicals in the person's workplace under
3-17 normal operating conditions or foreseeable emergencies, and
3-18 includes a person working for this state, a person working for a
3-19 political subdivision of this state, or a member of a volunteer
3-20 emergency service organization. The term does not include an
3-21 office worker, a ground maintenance worker, security personnel, or
3-22 nonresident management unless the person's job performance
3-23 routinely involves potential exposure to hazardous chemicals.
3-24 (10) "Expose" or "exposure" means that an employee is
3-25 subjected to a hazardous chemical in the course of employment
4-1 through any route of entry, including inhalation, ingestion, skin
4-2 contact, or absorption. The term includes potential, possible, or
4-3 accidental exposure.
4-4 <(11) "Fire chief" means the elected or paid
4-5 administrative head of a fire department.>
4-6 (11) <(12)> "Hazardous chemical" means an element,
4-7 chemical compound, or mixture of elements or compounds that is a
4-8 physical hazard or health hazard as defined by the OSHA standard in
4-9 29 CFR Section 1910.1200(c), or a hazardous substance as defined by
4-10 the OSHA standard in 29 CFR Section 1910.1200(d)(3).
4-11 (12) <(13)> "Label" means written, printed, or graphic
4-12 material displayed on or affixed to a container of hazardous
4-13 chemicals.
4-14 (13) <(14)> "Manufacturing employer" means an
4-15 employer with a workplace classified in Standard Industrial
4-16 Classification (SIC) Codes 20-39 who manufactures or uses a
4-17 hazardous chemical.
4-18 (14) <(15)> "Material safety data sheet" ("MSDS")
4-19 means a document containing chemical hazard and safe handling
4-20 information that is prepared in accordance with the requirements of
4-21 the OSHA standard for that document.
4-22 (15) <(16)> "Nonmanufacturing employer" or "employer"
4-23 means an employer with a workplace in Standard Industrial
4-24 Classification (SIC) Codes 46-49 (pipelines, transportation
4-25 services, communications, and electric, gas, and sanitary
5-1 services), 51 (wholesale trade, nondurable goods), 75 (automotive
5-2 repair, services, and garages), 76 (miscellaneous repair services),
5-3 80 (health services), 82 (educational services), and 84 (museums,
5-4 art galleries, and botanical and zoological gardens); this state
5-5 and its political subdivisions; and volunteer emergency service
5-6 organizations. If the OSHA standard is not in effect, "employer"
5-7 also includes manufacturing employer.
5-8 (16) <(17)> "OSHA standard" means the Hazard
5-9 Communication Standard issued by the Occupational Safety and Health
5-10 Administration and codified as 29 CFR Section 1910.1200.
5-11 (17) <(18)> "Work area" means a room or defined space
5-12 in a workplace where hazardous chemicals are produced or used and
5-13 where employees are present.
5-14 (18) <(19)> "Workplace" means an establishment at one
5-15 geographical location containing one or more work areas.
5-16 (19) <(20)> "Workplace chemical list" means a list of
5-17 hazardous chemicals developed under Section 502.005 or 29 CFR
5-18 Section 1910.1200(e)(i).
5-19 Sec. 502.004. Applicability of Chapter. (a) If the OSHA
5-20 standard is not in effect, this chapter applies to manufacturing
5-21 employers and distributors.
5-22 (b) If the OSHA standard is in effect, manufacturing
5-23 employers, nonmanufacturing employers, and distributors who are
5-24 regulated by and complying with the OSHA standard are required to
5-25 comply only with Section <Sections 502.005(d) and (e);> 502.006(a)
6-1 <and (d); 502.008; 502.012(d), (e), and (f); and 502.013(b), (c),
6-2 (d), and (e)>.
6-3 (c) Nonmanufacturing employers who are not regulated by and
6-4 complying with, and who adopt and comply with the OSHA standard may
6-5 be certified by the commissioner as being in compliance with this
6-6 chapter, except for Sections 502.005(d) and (e); 502.006(a) and
6-7 (d); <502.008;> 502.011 <502.012>(d), (e), and (f); and 502.012
6-8 <502.013>(b), (c), (d) and (e). The commissioner shall make the
6-9 certification annually.
6-10 (d) This chapter, except Section 502.008 <Sections
6-11 502.008(a) and 502.009>, does not apply to a workplace where
6-12 hazardous chemical in a sealed package is received and subsequently
6-13 sold or transferred in that package if:
6-14 (1) the seal and label remains intact while the
6-15 chemical is in the workplace; and
6-16 (2) the chemical does not remain in the workplace
6-17 longer than five working days.
6-18 (e) This chapter does not apply to the following:
6-19 (1) an article that:
6-20 (A) is formed to a specific shape or design
6-21 during manufacture;
6-22 (B) has an end-use function dependent in whole
6-23 or in part on the article's shape or design during end use; and
6-24 (C) does not release or otherwise result in
6-25 exposure to a hazardous chemical under normal conditions of use;
7-1 (2) a product intended for personal consumption by an
7-2 employee in the workplace;
7-3 (3) a retail food sale establishment or other retail
7-4 trade establishment, except processing and repair areas;
7-5 (4) a food, food additive, color additive, drug, or
7-6 cosmetic as those terms are defined by the federal Food, Drug, and
7-7 Cosmetic Act (21 U.S.C. Section 201 et seq.) or a distilled
7-8 spirit, wine, or malt beverage as those terms are defined by the
7-9 federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.);
7-10 (5) a chemical in a laboratory under the direct
7-11 supervision or guidance of a technically qualified individual if:
7-12 (A) labels on incoming containers of chemicals
7-13 are not removed or defaced;
7-14 (B) material safety data sheets received are
7-15 maintained and made accessible to employees and students;
7-16 (C) the laboratory complies with Section<s>
7-17 502.008 <and 502.009>; and
7-18 (D) the laboratory is not used primarily to
7-19 produce hazardous chemicals in bulk for commercial purposes;
7-20 (6) a product labeled in accordance with the federal
7-21 Insecticide, Fungicide, and Rodenticide Act (42 U.S.C. Section 136
7-22 et seq.);
7-23 (7) hazardous waste regulated in accordance with the
7-24 federal Resource Conservation and Recovery Act (42 U.S.C. Section
7-25 6901 et seq.); and
8-1 (8) radioactive waste.
8-2 Sec. 502.005. Workplace Chemical List. (a) An employer
8-3 shall compile and maintain a workplace chemical list that contains
8-4 the following information for each hazardous chemical normally used
8-5 or stored in the workplace in excess of 55 gallons or 500 pounds or
8-6 in excess of an amount that the board determines by rule for
8-7 certain highly toxic or dangerous hazardous chemicals:
8-8 (1) the chemical name and the common name used on the
8-9 MSDS and container label;
8-10 (2) the nomenclature used in identifying the chemical
8-11 name; and
8-12 (3) the work area in which the chemical is normally
8-13 stored or used.
8-14 (b) The employer shall update the workplace chemical list as
8-15 necessary but at least once a year.
8-16 (c) The workplace chemical list may be prepared for the
8-17 workplace as a whole or for each work area and must be readily
8-18 available for employees and their representatives. New or newly
8-19 assigned employees shall be made aware of the workplace chemical
8-20 list before working with or in a area containing hazardous
8-21 chemicals.
8-22 (d) An employer or manufacturing employer shall give the
8-23 commissioner a workplace chemical list. An employer or
8-24 manufacturing employer beginning operation shall give the
8-25 commissioner the workplace chemical list not later than the 60th
9-1 day after the date on which the employer or manufacturing employer
9-2 begins operation.
9-3 (e) An employer or manufacturing employer shall maintain a
9-4 workplace chemical list for at least 30 years. The employer or
9-5 manufacturing employer shall send complete records to the
9-6 commissioner if the business ceases to operate in this state.
9-7 Sec. 502.006. Material Safety Data Sheet. (a) A chemical
9-8 manufacturer or distributor shall provide appropriate material
9-9 safety data sheets to purchasers of hazardous chemicals in this
9-10 state.
9-11 (b) An employer shall maintain the most current MSDS
9-12 received from a manufacturer or distributor for each hazardous
9-13 chemical purchased. If a manufacturer or distributor does not
9-14 provide an MSDS for a hazardous chemical on the workplace chemical
9-15 list when the chemical is received at the workplace, the employer
9-16 shall request an MSDS in writing from the manufacturer or
9-17 distributor in a timely manner.
9-18 (c) Material safety data sheets shall be readily available,
9-19 on request, for review by employees or designated representatives.
9-20 (d) A copy of an MSDS shall be provided to the commissioner
9-21 on request. The commissioner shall request an MSDS from an
9-22 employer or manufacturing employer when a person requests an MSDS
9-23 from the commissioner and the person's request is based on that
9-24 person's review of an employer's or manufacturing employer's
9-25 workplace chemical list.
10-1 Sec. 502.007. Label. (a) A label on an incoming container
10-2 of a hazardous chemical may not be removed or defaced.
10-3 (b) An employee may not be required to work with a hazardous
10-4 chemical from an unlabeled container except for a portable
10-5 container intended for the immediate use of the employee who
10-6 performs the transfer.
10-7 Sec. 502.008. <EMERGENCY INFORMATION. (a) An employer or
10-8 manufacturing employer who normally stores a hazardous chemical in
10-9 an amount in excess of 55 gallons or 500 pounds or in excess of an
10-10 amount the board determines by rule for certain highly toxic or
10-11 dangerous hazardous chemicals shall provide to the fire chief of
10-12 the fire department having jurisdiction over the workplace, in
10-13 writing, the names and telephone numbers of knowledgeable
10-14 representatives of the employer or manufacturing employer who can
10-15 be contacted for further information or contacted in case of
10-16 emergency.>
10-17 <(b) Each employer or manufacturing employer, on request,
10-18 shall provide a copy of the workplace chemical list to the fire
10-19 chief. The employer shall notify the fire chief of any significant
10-20 changes to the workplace chemical list.>
10-21 <(c) The fire chief or the fire chief's representative, on
10-22 request, may conduct on-site inspections of the chemicals on the
10-23 workplace chemical list for the sole purpose of planning fire
10-24 department activities in case of an emergency.>
10-25 <(d) An employer or a manufacturing employer, on request,
11-1 shall give the fire chief a copy of MSDS for any chemical on the
11-2 workplace chemical list.>
11-3 <(e) The fire chief shall make the workplace chemical list
11-4 and MSDS's available to members of the fire department and to other
11-5 personnel outside the fire department who are responsible for
11-6 preplanning emergency activities. The fire chief may not otherwise
11-7 distribute the information without approval of the employer or
11-8 manufacturing employer.>
11-9 <Sec. 502.009.> Outreach Program. (a) The commissioner
11-10 shall develop an outreach program that:
11-11 (1) consists of an education and training program in
11-12 the form of instructional materials to assist employers in
11-13 fulfilling the requirements of Section 502.009 <502.010>; and
11-14 (2) includes the development and distribution of a
11-15 supply of informational leaflets concerning employers' duties,
11-16 employee rights, <the public's ability to obtain information under
11-17 this chapter,> the outreach program, and the effects of hazardous
11-18 chemicals.
11-19 (b) The commissioner may contract with a public institution
11-20 of higher education or other public or private organization to
11-21 develop and implement the outreach program.
11-22 (c) The commissioner shall develop and provide to each
11-23 employer a suitable form of notice providing employees with
11-24 information relating to employee rights under this chapter.
11-25 (d) The commissioner shall publicize the availability of
12-1 information to answer inquiries from employees, employers, or the
12-2 public in this state concerning the effects of hazardous chemicals.
12-3 (e) In cooperation with the commissioner, an employer may
12-4 provide an outreach program in the community.
12-5 Sec. 502.009 <502.010>. Employee Education Program. (a) An
12-6 employer shall provide, at least once a year, an education and
12-7 training program for employees who use or handle hazardous
12-8 chemicals.
12-9 (b) Not later than the 30th day after an employer provides
12-10 an education and training program, the employer shall report to the
12-11 commissioner that the program has been provided to the employees.
12-12 (c) An employer shall provide additional instruction to
12-13 employees when the potential for exposure to hazardous chemicals
12-14 changes or when the employer receives new and significant
12-15 information concerning the hazards of a chemical.
12-16 (d) An employer shall provide training to a new or newly
12-17 assigned employee before the employee works with or in a work area
12-18 containing a hazardous chemical.
12-19 (e) An employer shall keep a record of the dates of training
12-20 sessions given to employees.
12-21 (f) An education and training program must include, as
12-22 appropriate:
12-23 (1) information on interpreting labels and MSDS's and
12-24 the relationship between those two methods of hazard communication;
12-25 (2) the location, acute and chronic effects, and safe
13-1 handling of hazardous chemicals used by the employees;
13-2 (3) protective equipment and first aid treatment to be
13-3 used with respect to the hazardous chemicals used by the employees;
13-4 and
13-5 (4) general safety instructions on the handling,
13-6 cleanup procedures, and disposal of hazardous chemicals.
13-7 (g) As part of an outreach program created in accordance
13-8 with Section 502.008 <502.009>, the commissioner shall develop an
13-9 education and training assistance program to assist employers who
13-10 are unable to develop the programs because of size or other
13-11 practical considerations. The program shall be made available to
13-12 those employers on request.
13-13 Sec. 502.010 <502.011>. Liability Under Other Law.
13-14 Providing information to an employee does not affect:
13-15 (1) the liability of an employer with regard to the
13-16 health and safety of an employee or other person exposed to
13-17 hazardous chemicals;
13-18 (2) the employer's responsibility to take any action
13-19 to prevent occupational disease as required under other law; or
13-20 (3) any other duty or responsibility of a
13-21 manufacturer, producer, or formulator to warn ultimate users of a
13-22 hazardous chemical under other law.
13-23 Sec. 502.011 <502.012>. Complaints, Investigations, and
13-24 Penalties. (a) The commissioner or the commissioner's
13-25 representative shall investigate in a timely manner a complaint
14-1 received in writing from an employee or an employee's designated
14-2 representative relating to an alleged violation of this chapter by
14-3 a nonmanufacturing employer.
14-4 (b) A complaint received from an employee or an employee's
14-5 designated representative relating to an alleged violation by a
14-6 manufacturing employer shall be referred by the complainant to the
14-7 federal Occupational Safety and Health Administration if the OSHA
14-8 standard is in effect. The commissioner or the commissioner's
14-9 representative shall investigate the complaint if:
14-10 (1) the OSHA standard is not in effect; or
14-11 (2) the complaint is based on a requirement of this
14-12 chapter.
14-13 (c) On presentation of appropriate credentials, an officer
14-14 or representative of the commissioner may enter a workplace at
14-15 reasonable times to inspect and investigate complaints.
14-16 (d) An employer or manufacturing employer found to be in
14-17 violation of this chapter must comply not later than the 14th day
14-18 after the date of the finding. An employer or manufacturing
14-19 employer that does not comply before the 15th day after the date of
14-20 written notification of a violation is subject to an administrative
14-21 penalty of not more than $500 for each violation.
14-22 (e) An employer or manufacturing employer who knowingly
14-23 discloses false information or negligently fails to disclose a
14-24 hazard as required by this chapter is subject to a civil penalty of
14-25 not more than $5,000 for each violation.
15-1 (f) An employer or manufacturing employer who proximately
15-2 causes an injury to an individual by knowingly disclosing false
15-3 hazard information or knowingly failing to disclose hazard
15-4 information as required by this chapter is subject to a criminal
15-5 fine of not more than $25,000.
15-6 (g) This section does not affect any other right of an
15-7 employee or any other person to receive compensation for damages
15-8 under other law.
15-9 Sec. 502.012 <502.013>. Employee Notice; Rights of
15-10 Employees. (a) An employer shall post adequate notice, at
15-11 locations where notices are normally posted, informing employees of
15-12 their rights under this chapter. If the commissioner does not
15-13 prepare the notice under Section 502.008 <502.009>, the employer
15-14 shall prepare the notice.
15-15 (b) Employees who may be exposed to hazardous chemicals
15-16 shall be informed of the exposure and shall have access to the
15-17 workplace chemical list and MSDS's for the hazardous chemical.
15-18 Employees, on request, shall be provided a copy of a specific MSDS
15-19 with any trade secret information deleted. In addition, employees
15-20 shall receive training concerning the hazards of the chemicals and
15-21 measures they can take to protect themselves from those hazards.
15-22 Employees shall be provided with appropriate personal protective
15-23 equipment. These rights are guaranteed.
15-24 (c) An employer or a manufacturing employer may not
15-25 discharge, cause to be discharged, otherwise discipline, or in any
16-1 manner discriminate against an employee because the employee has:
16-2 (1) filed a complaint;
16-3 (2) assisted an inspector of the department who may
16-4 make or is making an inspection under Section 502.011 <502.012>;
16-5 (3) instituted or caused to be instituted any
16-6 proceeding under or related to this chapter;
16-7 (4) testified or is about to testify in a proceeding
16-8 under this chapter; or
16-9 (5) exercised any rights afforded under this chapter
16-10 on behalf of the employee or on behalf of others.
16-11 (d) Pay, position, seniority, or other benefits may not be
16-12 lost as the result of the exercise of any right provided by this
16-13 chapter.
16-14 (e) A waiver by an employee of the benefits or requirements
16-15 of this chapter is void. An employer's or a manufacturing
16-16 employer's request or requirement that an employee waive any rights
16-17 under this chapter as a condition of employment is a violation of
16-18 this chapter.
16-19 Sec. 502.013 <502.014>. Trade Secrets. (a) An employer who
16-20 believes that all or a part of the information required under
16-21 Section 502.005 <or Section 502.008(b) or (d)> is a trade secret
16-22 may withhold the information if:
16-23 (1) material safety data sheets are available to
16-24 employees in the area where they work;
16-25 (2) hazard information concerning the trade secret
17-1 chemicals, or an MSDS with trade secret information deleted, is
17-2 provided, on request, to the fire chief and the commissioner;
17-3 (3) all relevant information is provided to a
17-4 physician diagnosing and treating a person exposed to the chemical,
17-5 under requirements provided by the OSHA standard in 29 CFR Section
17-6 1910.1200(i)(2); and
17-7 (4) the employer can substantiate the trade secret
17-8 claim.
17-9 (b) The commissioner, on the commissioner's initiative or on
17-10 the request of an employee, the employee's designated
17-11 representative, a fire chief, or a person who made a request under
17-12 Section 502.006(d), may request any or all of the data
17-13 substantiating the trade secret claim to determine whether a claim
17-14 made under Subsection (a) is valid.
17-15 (c) When making a determination of a trade secret claim, the
17-16 commissioner shall conduct a reasonable search of available
17-17 literature to determine whether the hazard information is accurate.
17-18 (d) Based on a review of the health and safety information
17-19 made available by the employer and on other available information,
17-20 the commissioner shall sign and add an addendum to the MSDS
17-21 stating:
17-22 (1) the commissioner's opinion that the MSDS reflects
17-23 a prudent assessment of the scientific evidence regarding hazards;
17-24 or
17-25 (2) if the commissioner determines that the MSDS does
18-1 not reflect such a prudent assessment, the commissioner's opinion
18-2 of a prudent assessment of the scientific evidence.
18-3 (e) The commissioner shall complete the assessment not later
18-4 than the 90th day after the date on which the commissioner receives
18-5 the information substantiating the trade secret claim.
18-6 (f) If the commissioner receives information marked
18-7 "confidential" by the employer, the commissioner shall:
18-8 (1) protect the information from disclosure; and
18-9 (2) return the information to the employer when a
18-10 final determination is made.
18-11 (g) An employer whose trade secret claim is determined to be
18-12 invalid under this section may petition for judicial review not
18-13 later than the 30th day after the date on which the employer was
18-14 notified by the commissioner that the trade secret claim is
18-15 invalid. Judicial review is by trial de novo in a district court
18-16 in Travis County.
18-17 Sec. 502.014 <502.015>. Standard for Physician Treatment.
18-18 For the purposes of this chapter, the requirements in the OSHA
18-19 standard for physicians treating employees apply to physicians
18-20 treating persons.
18-21 Sec. 502.013 <502.016>. Rules; Fees. (a) The board may
18-22 adopt rules and administrative procedures reasonably necessary to
18-23 carry out the purposes of this chapter.
18-24 (b) The board may authorize the collection of fees from
18-25 manufacturing and nonmanufacturing employers for the filing of
19-1 workplace chemical lists required by this chapter or for other
19-2 employee <community> right-to-know purposes under the department's
19-3 jurisdiction. The fees shall be paid annually and may not exceed
19-4 $50 for each required submission. To minimize the fees, the
19-5 department by rule shall provide for consolidated filings for
19-6 employers with multiple or temporary workplaces if the workplace
19-7 chemical lists contain fewer than 25 items.
19-8 SECTION 2. Subtitle D, Title 6, Health and Safety Code, is
19-9 amended by adding Chapter 505 to read as follows:
19-10 CHAPTER 505. MANUFACTURING AND PUBLIC EMPLOYEE COMMUNITY
19-11 RIGHT-TO-KNOW ACT
19-12 Sec. 505.001. SHORT TITLE. This chapter may be cited as the
19-13 Manufacturing Facility and Public Employer Community Right-To-Know
19-14 Act.
19-15 Sec. 505.002. FINDINGS; PURPOSE.
19-16 (a) The legislature finds that:
19-17 (1) the health and safety of persons living in this
19-18 state may be improved by providing access to information regarding
19-19 hazardous chemicals to which those persons may be exposed during
19-20 emergency situations or as a result of proximity to the manufacture
19-21 or use of those chemicals; and
19-22 (2) many facility operators in this state have
19-23 established suitable information programs for their communities and
19-24 that access to the information is required of most facility
19-25 operators under the federal Emergency Planning and Community
20-1 Right-To-Know Act (EPCRA).
20-2 (b) It is the intent and purpose of this chapter to assure
20-3 that accessibility to information regarding hazardous chemicals is
20-4 provided to:
20-5 (1) fire departments responsible for dealing with
20-6 chemical hazards during an emergency; and
20-7 (2) Local Emergency Planning Committees and other
20-8 emergency planning organizations; and
20-9 (3) the commissioner to make the information available
20-10 to the public through specific procedures.
20-11 Sec. 505.003. FEDERAL LAWS AND REGULATION; OTHER STANDARDS.
20-12 (a) In this chapter, a reference to a federal law or
20-13 regulation means a reference to the most current version of that
20-14 law or regulation.
20-15 (b) In this chapter, a reference to Standard Industrial
20-16 Classification (SIC), to nomenclature systems developed by the
20-17 International Union of Pure and Applied Chemistry (IUPAC) or the
20-18 Chemical Abstracts Service (CAS), or to other information,
20-19 including such information as classification codes, performance
20-20 standards, systematic names, standards, and systems described in
20-21 publications sponsored by private technical or trade organizations,
20-22 means a reference to the most current version of the publication.
20-23 Sec. 505.004. DEFINITIONS. In this chapter:
20-24 (1) "Article" means a manufactured item:
20-25 (A) that is formed to a specific shape or design
21-1 during manufacture;
21-2 (B) that has end use function(s) dependent in
21-3 whole or in part upon its shape or design during end use; and
21-4 (C) that does not release, or otherwise result
21-5 in exposure to, a hazardous chemical, under normal conditions of
21-6 use.
21-7 (2) "Board" means the Texas Board of Health.
21-8 (3) "Chemical name" means:
21-9 (A) the scientific designation of a chemical in
21-10 accordance with the nomenclature system developed by the
21-11 International Union of Pure and Applied Chemistry (IUPAC) or the
21-12 Chemical Abstracts Service (CAS) rules of nomenclature; or
21-13 (B) a name that clearly identifies the chemical
21-14 for the purpose of conducting a hazard evaluation.
21-15 (4) "Commissioner" means the commissioner of health.
21-16 (5) "Common name" means a designation of
21-17 identification, such as a code name, code number, trade name, brand
21-18 name, or generic name, used to identify a chemical other than by
21-19 its chemical name.
21-20 (6) "Department" means the Texas Department of Health.
21-21 (7) "EPA" means the U.S. Environmental Protection
21-22 Agency.
21-23 (8) "EPCRA" or "SARA Title III" means the federal
21-24 Emergency Planning and Community Right-To-Know Act, also known as
21-25 the Superfund Amendments and Reauthorization Act of 1986, Title
22-1 III, Pub.L. No. 99-499 et seq.
22-2 (9) "Extremely hazardous substance" or "EHS" means any
22-3 substance as defined in EPCRA, Section 302, or listed by the United
22-4 States Environmental Protection Agency in 40 CFR Part 355,
22-5 Appendices A and B.
22-6 (10) "Facility" means all buildings, equipment,
22-7 structures, and other stationary items that are located on a single
22-8 site or on contiguous or adjacent sites, which are owned or
22-9 operated by the same person (or by any person which controls, is
22-10 controlled by, or under common control with, such person), and
22-11 which is in Standard Industrial Codes (SIC) 20-39 or operated by
22-12 the State or a political subdivision of the State.
22-13 (12) "Facility operator" or "operator" means the
22-14 person who controls the day to day operations of the facility.
22-15 (13) "Fire chief" means the elected or paid
22-16 administrative head of a fire department.
22-17 (14) "Hazardous chemical" has the meaning given the
22-18 term in 29 C.F.R. 1910.1200(c), except that the term does not
22-19 include the following:
22-20 (1) any food, food additive, color additive,
22-21 drug, or cosmetic regulated by the Food and Drug Administration;
22-22 (2) any substance present as a solid in any
22-23 manufactured item to the extent exposure to the substance does not
22-24 occur under normal conditions of use;
22-25 (3) any substance to the extent that it is used
23-1 for personal, family, or household purposes, or is present in the
23-2 same form and concentration as a product packaged for distribution
23-3 and use by the general public;
23-4 (4) any substance to the extent it is used in a
23-5 research laboratory or a hospital or other medical facility under
23-6 the direct supervision of a technically qualified individual; and
23-7 (5) any substance to the extent it is used in
23-8 routine agricultural operations or is a fertilizer held for sale by
23-9 a retailer to the ultimate consumer.
23-10 (15) "Health hazard" shall have the meaning set out in
23-11 the OSHA standard, 29 CFR 1910.1200(c).
23-12 (16) "Identity" means any chemical or common name, or
23-13 alphabetical and/or numerical identification, which is indicated on
23-14 the material safety data sheet (MSDS) for this chemical. The
23-15 identity used shall permit cross-references to be made among the
23-16 facility chemical list, the label, and the MSDS.
23-17 (17) "Label" means any written, printed, or graphic
23-18 material displayed on or affixed to a container of hazardous
23-19 chemicals.
23-20 (18) "Local emergency planning committee" means a
23-21 committee formed under the requirements of EPCRA, Section 301, and
23-22 recognized by the state emergency response commission for the
23-23 purposes of emergency planning and public information.
23-24 (19) "Material Safety Data Sheet" ("MSDS") means a
23-25 document containing chemical hazard and safe handling information
24-1 that is prepared in accordance with the requirements of the OSHA
24-2 standard for that document.
24-3 (20) "OSHA standard" means the Hazard Communication
24-4 Standard issued by the Occupational Safety and Health
24-5 Administration and codified as 29 CFR Section 1910.1200.
24-6 (21) "Person" means any individual, trust, firm, joint
24-7 stock company, corporation (including a government corporation),
24-8 partnership, association, State, municipality, commission,
24-9 political subdivision of a State, or interstate body.
24-10 (22) "Physical hazard" means a chemical for which
24-11 there is scientifically valid evidence that it is a combustible
24-12 liquid, a compressed gas, explosive, flammable, an organic
24-13 peroxide, an oxidizer, pyrophoric, unstable (reactive) or
24-14 water-reactive in terms defined in the OSHA standard.
24-15 (23) "Public employer" means the State and political
24-16 subdivisions of the State, including state, county, and municipal
24-17 agencies; public schools, colleges, and universities; river
24-18 authorities and publicly-owned utilities; volunteer emergency
24-19 service organizations; and other such employers that are not
24-20 covered by the federal Occupational Safety and Health Act of 1970
24-21 (Pub.L. No. 91-596), the federal Coal Mine Safety and Health Act
24-22 of 1969 (Pub.L No. 91-173), or the federal Mine Safety and Health
24-23 Amendments Act of 1977 (Public Law 95-164).
24-24 (24) "State Emergency Response Commission" or "SERC"
24-25 means the State Emergency Management Council or other committee,
25-1 appointed by the Governor in accordance with EPCRA.
25-2 (25) "Threshold planning quantity" means the minimum
25-3 quantity of an extremely hazardous substance for which a facility
25-4 owner or operator must participate in emergency planning, as
25-5 defined by EPA pursuant to EPCRA, Section 302.
25-6 (26) "Tier Two Form" means
25-7 (a) a form specified by the Department under
25-8 Section 505.006 of this chapter for listing hazardous chemicals as
25-9 required by EPCRA; or
25-10 (b) a form accepted by EPA under EPCRA for
25-11 listing hazardous chemicals together with additional information
25-12 required by the department for administering its functions related
25-13 to EPCRA.
25-14 (27) "Workplace chemical list" means a list of
25-15 hazardous chemicals developed under Section 502.005(a) of this code
25-16 or 29 CFR Section 1910.1200(e)(i), as applicable.
25-17 Sec. 505.005. APPLICABILITY OF CHAPTER. (a) Facility
25-18 operators whose facilities are in SIC Codes 20-39 and public
25-19 employers shall comply with this chapter.
25-20 (b) This chapter does not apply to a hazardous chemical in a
25-21 sealed package that is received and subsequently sold or
25-22 transferred in that package if:
25-23 (1) the seal remains intact while the chemical is in
25-24 the facility; and
25-25 (2) the chemical does not remain in the facility
26-1 longer than five working days; and
26-2 (3) the chemical is not an "Extremely Hazardous
26-3 Substance" at or above the "Threshold Planning Quantity" or 500
26-4 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
26-5 Appendices A and B, or in the most current revision.
26-6 (c) This chapter does not apply to the following:
26-7 (1) Any hazardous waste as that term is defined by the
26-8 federal Solid Waste Disposal Act, as amended by the Resource
26-9 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
26-10 Section 6901 et seq.), when subject to regulations issued under
26-11 that Act by the EPA;
26-12 (2) Tobacco or tobacco products;
26-13 (3) Wood or wood products;
26-14 (4) Articles;
26-15 (5) Food, drugs, cosmetics or alcoholic beverages in a
26-16 retail food sale establishment that are packaged for sale to
26-17 consumers;
26-18 (6) Foods, drugs, or cosmetics intended for personal
26-19 consumption by an employee while in the facility;
26-20 (7) Any consumer product or hazardous substance, as
26-21 those terms are defined in the Consumer Product Safety Act (15
26-22 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
26-23 (15 U.S.C. Section 1261 et seq.) respectively, if the employer can
26-24 demonstrate it is used in the facility in the same manner as normal
26-25 consumer use and if the use results in a duration and frequency of
27-1 exposure which is not greater than exposures experienced by
27-2 consumers;
27-3 (8) Any drug, as that term is defined in the Federal
27-4 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
27-5 it is in solid, final form for direct administration to the
27-6 patient, such as tablets or pills;
27-7 (9) the transportation, including storage incident to
27-8 that transportation, of any substance or chemical subject to this
27-9 chapter, including the transportation and distribution of natural
27-10 gas; and
27-11 (10) radioactive waste.
27-12 (d) The commission shall develop an outreach program
27-13 concerning the public's ability to obtain information under this
27-14 chapter similar to the outreach program in Sec. 502.008 of this
27-15 code.
27-16 Sec. 505.006. FACILITY CHEMICAL LIST. (a) For the purpose
27-17 of community right-to-know, the operator of a facility, as defined
27-18 in this chapter, shall compile and maintain a Tier Two Form that
27-19 contains information on hazardous chemicals present in the facility
27-20 in quantities that meet or exceed thresholds determined by the EPA
27-21 in the most current revision of 40 CFR Part 370, or at any other
27-22 reporting thresholds as determined by board rule for certain highly
27-23 toxic or extremely hazardous substances.
27-24 (b) Multiple facilities may be reported on the same Tier Two
27-25 Form, with appropriate facility identifiers, if the hazardous
28-1 chemicals or hazardous chemical categories present at the multiple
28-2 facilities are in the same ranges. In multiple facility
28-3 reporting, the reporting thresholds must be applied to each
28-4 facility rather than to the total quantities present at all
28-5 facilities.
28-6 (c) Each Tier Two Form shall be filed annually with the
28-7 appropriate fee attached according to the procedures specified in
28-8 the board's rules. The operator shall furnish a copy of each Tier
28-9 Two Form to the fire chief of the fire department having
28-10 jurisdiction over the facility and to the appropriate local
28-11 emergency planning committee.
28-12 (d) The Tier Two Form shall be used to comply with the
28-13 updating requirements in EPCRA Section 311, but a fee may not be
28-14 associated with filing the report.
28-15 (e) A facility operator shall file the Tier Two Form with
28-16 the department not later than the 90th day after the date on which
28-17 the operator begins operation or has a reportable addition, at the
28-18 appropriate threshold, of a previously unreported hazardous
28-19 chemical or extremely hazardous substance. The operator shall
28-20 furnish a copy of each Tier Two Form to the fire chief of the fire
28-21 department having jurisdiction over the facility and to the
28-22 appropriate local emergency planning committee.
28-23 (f) A facility operator shall file a material safety data
28-24 sheet with the department upon the department's request.
28-25 (g) The department shall maintain records of the Tier Two
29-1 Forms and other documents filed under this chapter or EPCRA for at
29-2 least thirty years.
29-3 (h) Except as provided in Section 505.017 of this chapter,
29-4 documents filed under this chapter are subject to the provisions of
29-5 the Texas Open Records Act (V.A.C.S., Art. 6252-17a).
29-6 Sec. 505.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a)
29-7 Except as otherwise provided by this section, a person may request
29-8 in writing copies of the facility's existing workplace chemical
29-9 list for community right-to-know purposes.
29-10 (b) Except as otherwise provided by this section, any
29-11 facility covered by this chapter shall furnish or mail, within 10
29-12 working days of receipt of a request pursuant to Subsection (a),
29-13 either a copy of the facility's existing workplace chemical list or
29-14 a modified version of the most recent Tier Two Form using a five
29-15 hundred pound threshold.
29-16 (c) Any facility which has received 5 requests pursuant to
29-17 Subsection (a) within a calendar month, four requests per calendar
29-18 month for two or more months in a row, or more than ten requests in
29-19 a year may elect to furnish the material to the department.
29-20 (d) Any facility electing to furnish the material to the
29-21 department pursuant to Subsection (c) may during that same filing
29-22 period inform persons making requests under Subsection (a) of the
29-23 availability of the information at the department, and refer the
29-24 request to the department for that filing period. The notice to
29-25 persons making requests shall state the address of the department
30-1 and shall be mailed within seven days of receipt of the request, if
30-2 by mail, and at the time of the request if in person.
30-3 (e) Except as provided in Section 505.017 of this chapter,
30-4 documents filed under this chapter are subject to the provisions of
30-5 the Texas Open Records Act (V.A.C.S., Art. 6252-17a).
30-6 Sec. 505.008. EMERGENCY PLANNING INFORMATION. (a) The fire
30-7 chief or fire chief's representative, on request, may conduct
30-8 on-site inspections of the chemicals on the Tier Two Form for the
30-9 sole purpose of planning fire department activities in case of an
30-10 emergency.
30-11 (b) A facility operator, on request, shall give the fire
30-12 chief or the local emergency planning committee such additional
30-13 information on types and amounts of hazardous chemicals present at
30-14 a facility as they may need for emergency planning purposes. A
30-15 facility operator, on request, shall give the commissioner, the
30-16 fire chief, or the local emergency planning committee a copy of the
30-17 MSDS for any chemical on the Tier Two Form furnished under
30-18 Section 505.006 of this Title or any chemical present at the
30-19 facility.
30-20 (c) The Department by rule shall require certain categories
30-21 of facility operators under certain circumstances to implement the
30-22 National Fire Protection Association 704 identification system if
30-23 an equivalent system is not in use.
30-24 Sec. 505.009. COMPLAINTS AND INVESTIGATIONS. On
30-25 presentation of appropriate credentials, an officer or
31-1 representative of the commissioner may enter a facility at
31-2 reasonable times to inspect and investigate complaints under this
31-3 chapter.
31-4 Sec. 505.010. ADMINISTRATIVE PENALTY. (a) The commissioner
31-5 may assess an administrative penalty against an operator who
31-6 violates this chapter, the board's rules adopted under this
31-7 chapter, or an order issued under this chapter.
31-8 (b) If the department finds one or more violations of this
31-9 act, the commissioner may issue a Notice of Violation to the
31-10 operator. The Notice of Violation shall specifically describe the
31-11 violation(s), refer to the applicable section(s) or subsection(s)
31-12 of the act, and state the amount of the penalty, if any, to be
31-13 assessed by the commissioner.
31-14 (c) An operator who receives a Notice of Violation may
31-15 respond to the department in writing within fifteen (15) days of
31-16 receipt of the Notice of Violation in one of the following ways:
31-17 (1) If the operator disputes the validity of the
31-18 violation and has reason to believe that the findings of the
31-19 department were based on inaccurate or incomplete information, the
31-20 operator may request an informal conference with representatives of
31-21 the department. The purpose of an informal conference is to permit
31-22 the operator to meet with department representatives to discuss the
31-23 basis of the violation and to provide information to the
31-24 department. It shall be the responsibility of the department to
31-25 schedule the informal conference. A request for an informal
32-1 conference made in bad faith shall constitute a violation of this
32-2 act.
32-3 (2) The operator may correct the violation(s) and
32-4 certify to the department that the corrections have been made.
32-5 (3) The operator may request a hearing.
32-6 (d) Following an informal conference, the department shall
32-7 respond in writing to the operator, stating whether the department
32-8 intends to withdraw the Notice of Violation or pursue it. If the
32-9 department intends to pursue the Notice of Violation, the operator
32-10 may respond as follows within ten (10) days of receipt of the
32-11 department's correspondence:
32-12 (1) The operator may correct the violation(s) and
32-13 certify to the department that such corrections have been made; or
32-14 (2) The operator may request a hearing.
32-15 (e) A request for an informal conference or a statement by
32-16 an operator that the operator is in compliance with the provisions
32-17 of the act shall not constitute a waiver of the operator's right to
32-18 a hearing.
32-19 (f) Except as provided in Subsection (g), the commissioner
32-20 may not assess an administrative penalty for any violation that has
32-21 been corrected within fifteen (15) days of the date for the Notice
32-22 of Violation, the receipt of the department's response by the
32-23 employer, or ten (10) days after the receipt by the operator of the
32-24 department's response to the informal conference provided for in
32-25 subsection (c), whichever is later.
33-1 (g) If a violation involves a failure to make a good-faith
33-2 effort to comply with this chapter, the commission may assess the
33-3 administrative penalty at any time.
33-4 (h) In determining the amount of the penalty, the
33-5 commissioner shall consider:
33-6 (1) the operator's previous violations;
33-7 (2) the seriousness of the violation;
33-8 (3) any hazard to the health and safety of the public;
33-9 (4) the operator's demonstrated good faith;
33-10 (5) the duration of the violation; and
33-11 (6) such other matters as justice may require.
33-12 (i) The penalty may not exceed $500 a day for each day a
33-13 violation continues, with a total not to exceed $5,000 for each
33-14 violation.
33-15 Sec. 505.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
33-16 (a) An administrative penalty may be assessed only after a
33-17 facility operator charged with a violation is given an opportunity
33-18 for a hearing.
33-19 (b) If a hearing is held, the commissioner shall make
33-20 findings of fact and shall issue a written decision regarding the
33-21 occurrence of the violation and the amount of the penalty that may
33-22 be warranted.
33-23 (c) If the facility operator charged with the violation does
33-24 not request a hearing, the commissioner may assess a penalty after
33-25 determining that a violation has occurred and the amount of the
34-1 penalty that may be warranted.
34-2 (d) After making a determination under this section that a
34-3 penalty is to be assessed against a facility operator, the
34-4 commissioner shall issue an order requiring that the facility
34-5 operator pay the penalty.
34-6 (e) If a penalty is assessed on a complaint, the department
34-7 may allow the operator to make a grant to the local LEPC or a
34-8 member organization thereof in lieu of payment of the penalty. The
34-9 department may specify that the operator join the LEPC and attend
34-10 all meetings for one year or write an article, approved by the
34-11 department, concerning community right-to-know laws applicable in
34-12 Texas for a trade journal or other business publication.
34-13 (f) The commissioner may consolidate a hearing held under
34-14 this section with another proceeding.
34-15 Sec. 505.012. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
34-16 later than the 30th day after the date an order finding that a
34-17 violation has occurred is issued, the commissioner shall inform the
34-18 facility operator against whom the order is issued of the amount of
34-19 the penalty for the violation.
34-20 (b) Except as provided in Sec. 505.011(e), no later than the
34-21 30th day after the date on which a decision or order charging a
34-22 facility operator with a penalty is final, except as provided in
34-23 Sec. 505.011(e), the facility operator shall:
34-24 (1) pay the penalty in full; or
34-25 (2) if the facility operator seeks judicial review of
35-1 the amount of the penalty, the fact of the violation, or both:
35-2 (A) send the amount of the penalty to the
35-3 commissioner or placement in an escrow account; or
35-4 (B) post a bond with the commissioner for the
35-5 amount of the penalty.
35-6 (c) Subdivision (2) of Subsection (b) does not apply to the
35-7 State and political subdivisions of the State. The Department may
35-8 by rule provide for appeals by the State and subdivisions of the
35-9 State.
35-10 (d) A bond posted under this section must be in a form
35-11 approved by the commissioner and be effective until all judicial
35-12 review of the order or decision is final.
35-13 (e) A facility operator waives all rights to contest the
35-14 violation or the amount of the penalty if the facility operator
35-15 does not send the money to the commissioner or post the bond within
35-16 the period prescribed by Subsection (b).
35-17 Sec. 505.013. REFUND OF ADMINISTRATIVE PENALTY. Not later
35-18 than the 30th day after the date of a judicial determination that
35-19 an administrative penalty against a facility operator should be
35-20 reduced or not assessed, the commissioner shall:
35-21 (1) remit to the facility operator the appropriate
35-22 amount of any penalty payment plus accrued interest; or
35-23 (2) execute a release of the bond if the facility
35-24 operator has posted a bond.
35-25 Sec. 505.014. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
36-1 GENERAL. The attorney general at the request of the commissioner
36-2 may bring a civil action to recover an administrative penalty under
36-3 this chapter.
36-4 Sec. 505.015. CIVIL PENALTIES. (a) A person who knowingly
36-5 discloses false information or negligently fails to disclose a
36-6 hazard as required by this chapter is subject to a civil penalty of
36-7 not more than $5,000 for each violation.
36-8 (b) This section does not affect any other right of a person
36-9 to receive compensation under other law.
36-10 Sec. 505.016. CRIMINAL PENALTIES. (a) A person who
36-11 proximately causes an occupational disease or injury to an
36-12 individual by knowingly disclosing false information or knowingly
36-13 failing to disclose hazard information as required by this chapter
36-14 is subject to a criminal fine of not more than $25,000.
36-15 (b) This section does not affect any other right of a person
36-16 to receive compensation under other law.
36-17 Sec. 505.017. TRADE SECRETS. Facility operators must
36-18 substantiate trade secret claims to the Administrator of the EPA,
36-19 in accordance with EPCRA, Section 322.
36-20 Sec. 505.018. RULES; FEES. (a) The board may adopt rules
36-21 and administrative procedures reasonably necessary to carry out the
36-22 purposes of this chapter.
36-23 (b) The board may authorize the collection of annual fees
36-24 from facility operators for the filing of Tier Two Forms required
36-25 by this chapter. Except as provided in Subsection (d), fees may be
37-1 used only to fund activities under this chapter. The fee for
37-2 facilities in SIC codes 20-39 shall not exceed $100 for each
37-3 required submission having no more than 25 hazardous chemicals or
37-4 hazardous chemical categories, $200 for each required submission
37-5 having no more than 50 hazardous chemicals or hazardous chemical
37-6 categories, $300 for each required submission having no more than
37-7 75 hazardous chemicals or hazardous chemical categories, $400 for
37-8 each required submission having no more than 100 hazardous
37-9 chemicals or hazardous chemical categories, or $500 for each
37-10 required submission having 100 or more hazardous chemicals or
37-11 chemical categories. The fee for public employers shall not exceed
37-12 $50 for each required submission having no more than 75 hazardous
37-13 chemicals or hazardous chemical categories, or $100 for each
37-14 required submission having more than 75 hazardous chemicals or
37-15 chemical categories.
37-16 (c) To minimize the fees, the department by rule shall
37-17 provide for consolidated filings of multiple Tier Two Forms for
37-18 facility operators covered by Subsection (b) if each of the Tier
37-19 Two Forms contains fewer than 25 items.
37-20 (d) The department may use up to twenty percent (20%) of the
37-21 fees collected under this section as grants to local emergency
37-22 planning committees to assist them to fulfill their
37-23 responsibilities under EPCRA. The department may use of to 15% of
37-24 the fees collected under this chapter, or the amount of fees paid
37-25 by the state and its political subdivisions, whichever is greater,
38-1 to administer Chapter 502.
38-2 SECTION 3. Subtitle D, Title 6, Health and Safety Code, is
38-3 amended by adding Chapter 506 to read as follows:
38-4 CHAPTER 506. NON-MANUFACTURING FACILITIES COMMUNITY RIGHT-TO-KNOW
38-5 ACT
38-6 Sec. 506.001. SHORT TITLE. This chapter may be cited as the
38-7 Non-Manufacturing Facilities Community Right-To-Know Act.
38-8 Sec. 506.002. FINDINGS; PURPOSE. (a) The legislature finds
38-9 that:
38-10 (1) the health and safety of persons living in this
38-11 state may be improved by providing access to information regarding
38-12 hazardous chemicals to which those persons may be exposed during
38-13 emergency situations or as a result of proximity to the use of
38-14 those chemicals; and
38-15 (2) many facility operators in this state have
38-16 established suitable information programs for their communities and
38-17 that access to the information is required of most facility
38-18 operators under the federal Emergency Planning and Community
38-19 Right-To-Know Act (EPCRA).
38-20 (b) It is the intent and purpose of this chapter to assure
38-21 than accessibility to information regarding hazardous chemicals is
38-22 provided to:
38-23 (1) fire departments responsible for dealing with
38-24 chemical hazards during an emergency; and
38-25 (2) Local Emergency Planning Committees and other
39-1 emergency planning organizations; and
39-2 (3) the commissioner to make the information available
39-3 to the public through specific procedures.
39-4 Sec. 506.003. FEDERAL LAWS AND REGULATION; OTHER STANDARDS.
39-5 In this chapter, a reference to a federal law or regulation means a
39-6 reference to the most current version of that law or regulation.
39-7 Sec. 506.004. DEFINITIONS. In this chapter:
39-8 (1) "Article" means a manufactured item:
39-9 (A) that is formed to a specific shape or design
39-10 during manufacture;
39-11 (B) that has end use function(s) dependent in
39-12 whole or in part upon its shape or design during end use; and
39-13 (C) that does not release, or otherwise result
39-14 in exposure to, a hazardous chemical, under normal conditions of
39-15 use.
39-16 (2) "Board" means the Texas Board of Health.
39-17 (3) "Chemical name" means:
39-18 (A) the scientific designation of a chemical in
39-19 accordance with the nomenclature system developed by the
39-20 International Union of Pure and Applied Chemistry (IUPAC) or the
39-21 Chemical Abstracts Service (CAS) rules of nomenclature; or
39-22 (B) a name that clearly identifies the chemical
39-23 for the purpose of conducting a hazard evaluation.
39-24 (4) "Commissioner" means the commissioner of health.
39-25 (5) "Common name" means a designation of
40-1 identification, such as a code name, code number, trade name, brand
40-2 name, or generic name, used to identify a chemical other than by
40-3 its chemical name.
40-4 (6) "Department" means the Texas Department of Health.
40-5 (7) "EPA" means the U.S. Environmental Protection
40-6 Agency.
40-7 (8) "EPCRA" or "SARA Title III" means the federal
40-8 Emergency Planning and Community Right-To-Know Act, also known as
40-9 the Superfund Amendments and Reauthorization Act of 1986, Title
40-10 III, Pub.L. No. 99-499 et seq.
40-11 (9) "Extremely hazardous substance" or "EHS" means any
40-12 substance as defined in EPCRA, Section 302, or listed by the United
40-13 States Environmental Protection Agency in 40 CFR Part 355,
40-14 Appendices A and B.
40-15 (10) "Facility" means all buildings, equipment,
40-16 structures, and other stationary items that are located on a single
40-17 site or on contiguous or adjacent sites and which are owned or
40-18 operated by the same person (or by any person which controls, is
40-19 controlled by, or under common control with, such person);
40-20 provided, however that the facility is not subject to Chapter 505.
40-21 (11) "Facility operator" or "operator" means the
40-22 person who controls the day to day operations of the facility.
40-23 (12) "Fire chief" means the elected or paid
40-24 administrative head of a fire department.
40-25 (13) "Hazardous chemical" has the meaning given the
41-1 term in 29 C.F.R. 1910.1200(c), except that the term does not
41-2 include the following:
41-3 (1) any food, food additive, color additive,
41-4 drug, or cosmetic regulated by the Food and Drug Administration;
41-5 (2) any substance present as a solid in any
41-6 manufactured item to the extent exposure to the substance does not
41-7 occur under normal conditions of use;
41-8 (3) any substance to the extent that it is used
41-9 for personal, family, or household purposes, or is present in the
41-10 same form and concentration as a product packaged for distribution
41-11 and use by the general public;
41-12 (4) any substance to the extent it is used in a
41-13 research laboratory or a hospital or other medical facility under
41-14 the direct supervision of a technically qualified individual; and
41-15 (5) any substance to the extent it is used in
41-16 routine agricultural operations or is a fertilizer held for sale by
41-17 a retailer to the ultimate consumer.
41-18 (14) "Health hazard" shall have the meaning set out in
41-19 the OSHA standard, 29 CFR 1910.1200(c).
41-20 (15) "Identity" means a chemical or common name, or
41-21 alphabetical and/or numerical identification, which is indicated on
41-22 the material safety data sheet (MSDS) for this chemical. The
41-23 identity used shall permit cross-references to be made among the
41-24 facility chemical list, the label, and the MSDS.
41-25 (16) "Label" means any written, printed, or graphic
42-1 material displayed on or affixed to a container of hazardous
42-2 chemicals.
42-3 (17) "Local emergency planning committee" means a
42-4 committee formed under the requirements of EPCRA, Section 301, and
42-5 recognized by the state emergency response commission for the
42-6 purposes of emergency planning and public information.
42-7 (18) "Material Safety Data Sheet" ("MSDS") means a
42-8 document containing chemical hazard and safe handling information
42-9 that is prepared in accordance with the requirements of the OSHA
42-10 standard for that document.
42-11 (19) "OSHA standard" means the Hazard Communication
42-12 Standard issued by the Occupational Safety and Health
42-13 Administration and codified as 29 CFR Section 1910.1200.
42-14 (20) "Person" means any individual, trust, firm, joint
42-15 stock company, corporation (including a government corporation),
42-16 partnership, association, State, municipality, commission,
42-17 political subdivision of a State, or interstate body.
42-18 (21) "Physical hazard" means a chemical for which
42-19 there is scientifically valid evidence that it is a combustible
42-20 liquid, a compressed gas, explosive, flammable, an organic
42-21 peroxide, an oxidizer, pyrophoric, unstable (reactive) or
42-22 water-reactive in terms defined in the OSHA standard.
42-23 (22) "State Emergency Response Commission" or "SERC"
42-24 means the State Emergency Management Council or other committee,
42-25 appointed by the Governor in accordance with EPCRA.
43-1 (25) "Threshold planning quantity" means the minimum
43-2 quantity of an extremely hazardous substance for which a facility
43-3 owner or operator must participate in emergency planning, as
43-4 defined by EPA pursuant to EPCRA, Section 302.
43-5 (26) "Tier Two Form" means
43-6 (a) a form specified by the Department under
43-7 Section 505.006 of this chapter for listing hazardous chemicals as
43-8 required by EPCRA; or
43-9 (b) a form accepted by EPA under EPCRA for
43-10 listing hazardous chemicals together with additional information
43-11 required by the department for administering its functions related
43-12 to EPCRA.
43-13 Sec. 506.005. APPLICABILITY OF CHAPTER. (a) Facility
43-14 operators who are not subject to Chapter 505 shall comply with this
43-15 chapter.
43-16 (b) This chapter does not apply to a hazardous chemical in a
43-17 sealed package that is received and subsequently sold or
43-18 transferred in that package if:
43-19 (1) the seal remains intact while the chemical is in
43-20 the facility; and
43-21 (2) the chemical does not remain in the facility
43-22 longer than five working days; and
43-23 (3) the chemical is not an "Extremely Hazardous
43-24 Substance" at or above the "Threshold Planning Quantity" or 500
43-25 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
44-1 Appendices A and B, or in the most current revision.
44-2 (c) This chapter does not apply to the following:
44-3 (1) Any hazardous waste as that term is defined by the
44-4 federal Solid Waste Disposal Act, as amended by the Resource
44-5 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
44-6 Section 6901 et seq.), when subject to regulations issued under
44-7 that Act by the EPA;
44-8 (2) Tobacco or tobacco products;
44-9 (3) Wood or wood products;
44-10 (4) Articles;
44-11 (5) Food, drugs, cosmetics or alcoholic beverages in a
44-12 retail food sale establishment that are packaged for sale to
44-13 consumers;
44-14 (6) Foods, drugs, or cosmetics intended for personal
44-15 consumption by an employee while in the facility;
44-16 (7) Any consumer product or hazardous substance, as
44-17 those terms are defined in the Consumer Product Safety Act (15
44-18 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
44-19 (15 U.S.C. Section 1261 et seq.) respectively, if the employer can
44-20 demonstrate it is used in the facility in the same manner as normal
44-21 consumer use and if the use results in a duration and frequency of
44-22 exposure which is not greater than exposures experienced by
44-23 consumers;
44-24 (8) Any drug, as that term is defined in the Federal
44-25 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
45-1 it is in solid, final form for direct administration to the
45-2 patient, such as tablets or pills;
45-3 (9) the transportation, including storage incident to
45-4 that transportation, of any substance or chemical subject to this
45-5 chapter, including the transportation and distribution of natural
45-6 gas; and
45-7 (10) radioactive waste.
45-8 (d) The commission shall develop an outreach program
45-9 concerning the public's ability to obtain information under this
45-10 chapter similar to the outreach program in Sec. 502.008 (d) of this
45-11 code.
45-12 Sec. 506.006. Facility Chemical List. (a) For the purpose
45-13 of community right-to-know, the operator of a facility, as defined
45-14 in this chapter, shall compile and maintain a Tier Two Form that
45-15 contains information on hazardous chemicals present in the facility
45-16 in quantities that meet or exceed thresholds determined by the EPA
45-17 in the most current revision of 40 CFR Part 370, or at any other
45-18 reporting thresholds as determined by board rule for certain highly
45-19 toxic or extremely hazardous substances.
45-20 (b) Multiple facilities may be reported on the same Tier Two
45-21 Form, with appropriate facility identifiers, if the hazardous
45-22 chemicals or hazardous chemical categories present at the multiple
45-23 facilities are in the same ranges. In multiple facility reporting,
45-24 the reporting thresholds must be applied to each facility rather
45-25 than to the total quantities present at all facilities.
46-1 (c) Each Tier Two Form shall be filed annually with the
46-2 appropriate fee attached according to the procedures specified in
46-3 the board's rules. The operator shall furnish a copy of each Tier
46-4 Two Form to the fire chief of the fire department having
46-5 jurisdiction over the facility and to the appropriate local
46-6 emergency planning committee.
46-7 (d) The Tier Two Form shall be used to comply with the
46-8 updating requirements in EPCRA Section 311, but a fee may not be
46-9 associated with filing the report.
46-10 (e) A facility operator shall file the Tier Two Form with
46-11 the department not later than the 90th day after the date on which
46-12 the operator begins operation or has a reportable addition, at the
46-13 appropriate threshold, of a previously unreported hazardous
46-14 chemical or extremely hazardous substance. The operator shall
46-15 furnish a copy of each Tier Two Form to the fire chief of the fire
46-16 department having jurisdiction over the facility and to the
46-17 appropriate local emergency planning committee.
46-18 (f) A facility operator shall file a material safety data
46-19 sheet with the department upon the department's request.
46-20 (g) The department shall maintain records of the Tier Two
46-21 Forms and other documents filed under this chapter or EPCRA for at
46-22 least thirty years.
46-23 (h) Except as provided in Section 506.016 of this chapter,
46-24 documents filed under this chapter are subject to the provisions of
46-25 the Texas Open Records Act (V.A.C.S., Art. 6252-17a).
47-1 Sec. 506.007. EMERGENCY PLANNING INFORMATION. (a) The fire
47-2 chief or fire chief's representative, on request, may conduct
47-3 on-site inspections of the chemicals on the Tier Two Form for the
47-4 sole purpose of planning fire department activities in case of an
47-5 emergency.
47-6 (b) A facility operator, on request, shall give the first
47-7 chief or the local emergency planning committee such additional
47-8 information on types and amounts of hazardous chemicals present at
47-9 a facility as they may need for emergency planning purposes. A
47-10 facility operator, on request, shall give the commissioner, the
47-11 fire chief, or the local emergency planning committee a copy of the
47-12 MSDS for any chemical on the Tier Two Form furnished under Section
47-13 506.006 of this Title or any chemical present at the facility.
47-14 (c) The Department by rule may require certain categories of
47-15 facility operators under certain circumstances to implement the
47-16 National Fire Protection Association 704 identification system if
47-17 an equivalent system is not in use.
47-18 Sec. 506.008. COMPLAINTS AND INVESTIGATIONS. On
47-19 presentation of appropriate credentials, an officer or
47-20 representative of the commissioner may enter a facility at
47-21 reasonable times to inspect and investigate complaints under this
47-22 chapter.
47-23 Sec. 506.009. ADMINISTRATIVE PENALTY. (a) The commissioner
47-24 may assess an administrative penalty against a facility operator
47-25 who violates this chapter, the board's rules adopted under this
48-1 chapter, or an order issued under this chapter.
48-2 (b) If the department finds one or more violations of this
48-3 act, the commissioner may issue a Notice of Violation to the
48-4 operator. The Notice of Violation shall specifically describe the
48-5 violation(s), refer to the applicable section(s) or subsection(s)
48-6 of the act, and state the amount of the penalty, if any, to be
48-7 assessed by the commissioner.
48-8 (c) An operator who receives a Notice of Violation may
48-9 respond to the department in writing within fifteen (15) days of
48-10 receipt of the Notice of Violation in one of the following ways:
48-11 (1) If the operator disputes the validity of the
48-12 violation and has reason to believe that the findings of the
48-13 department were based on inaccurate or incomplete information, the
48-14 operator may request an informal conference with representatives of
48-15 the department. The purpose of an informal conference is to permit
48-16 the operator to meet with department representatives to discuss the
48-17 basis of the violation and to provide information to the
48-18 department. It shall be the responsibility of the department to
48-19 schedule the informal conference. A request for an informal
48-20 conference made in bad faith shall constitute a violation of this
48-21 act.
48-22 (2) The operator may correct the violation(s) and
48-23 certify to the department that the corrections have been made.
48-24 (3) The operator may request a hearing.
48-25 (d) Following an informal conference, the department shall
49-1 respond in writing to the operator, stating whether the department
49-2 intends to withdraw the Notice of Violation or pursue it. If the
49-3 department intends to pursue the Notice of Violation, the operator
49-4 may respond as follows within ten (10) days of receipt of the
49-5 department's correspondence:
49-6 (1) The operator may correct the violation(s) and
49-7 certify to the department that such corrections have been made; or
49-8 (2) The operator may request a hearing.
49-9 (e) A request for an informal conference or a statement by
49-10 an operator that the operator is in compliance with the provisions
49-11 of the act shall not constitute a waiver of the operator's right to
49-12 a hearing.
49-13 (f) Except as provided in Subsection (g), the commissioner
49-14 may not assess an administrative penalty for any violation that has
49-15 been corrected within fifteen (15) days of the date for the Notice
49-16 of Violation, the receipt of the department's response by the
49-17 employer, or ten (10) days after the receipt by the operator of the
49-18 department's to the informal conference provided for in subsection
49-19 (c), whichever is later.
49-20 (g) If a violation involves a failure to make a good-faith
49-21 effort to comply with this chapter, the commission may assess the
49-22 administrative penalty at any time.
49-23 (h) In determining the amount of the penalty, the
49-24 commissioner shall consider:
49-25 (1) the operator's previous violations;
50-1 (2) the seriousness of the violation;
50-2 (3) any hazard to the health and safety of the public;
50-3 (4) the operator's demonstrated good faith; and
50-4 (5) the duration of the violation; and
50-5 (6) such other matters as justice may require.
50-6 (i) The penalty may not exceed $50 for each day a violation
50-7 continues, with a total not to exceed $1,000 for each violation.
50-8 Sec. 506.010. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
50-9 (a) An administrative penalty may be assessed only after a
50-10 facility operator charged with a violation is given an opportunity
50-11 for a hearing.
50-12 (b) If a hearing is held, the commissioner shall make
50-13 findings of fact and shall issue a written decision regarding the
50-14 occurrence of the violation and the amount of the penalty that may
50-15 be warranted.
50-16 (c) If the facility operator charged with the violation does
50-17 not request a hearing, the commissioner may assess a penalty after
50-18 determining that a violation has occurred and the amount of the
50-19 penalty that may be warranted.
50-20 (d) After making a determination under this section that a
50-21 penalty is to be assessed against a facility operator, the
50-22 commissioner shall issue an order requiring that the facility
50-23 operator pay the penalty.
50-24 (e) If a penalty is assessed on a complaint, the department
50-25 may allow the operator to make a grant to the local LEPC or a
51-1 member organization thereof in lieu of payment of the penalty. The
51-2 department may specify that the operator join the LEPC and attend
51-3 all meetings for one year or write an article, approved by the
51-4 department, concerning community right-to-know laws applicable in
51-5 Texas for a trade journal or other business publication.
51-6 (f) The commissioner may consolidate a hearing held under
51-7 this section with another proceeding.
51-8 Sec. 506.011. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
51-9 later than the 30th day after the date an order finding that a
51-10 violation has occurred is issued, the commissioner shall inform the
51-11 facility operator against whom the order is issued of the amount of
51-12 the penalty for the violation.
51-13 (b) Except as provided in Sec. 506.010(e), no later than the
51-14 30th day after the date on which a decision or order charging a
51-15 facility operator with a penalty is final, the facility operator
51-16 shall:
51-17 (1) pay the penalty in full; or
51-18 (2) if the facility operator seeks judicial review of
51-19 the amount of the penalty, the fact of the violation, or both:
51-20 (A) send the amount of the penalty to the
51-21 commissioner for placement in an escrow account; or
51-22 (B) post a bond with the commissioner for the
51-23 amount of the penalty.
51-24 (c) A bond posted under this section must be in a form
51-25 approved by the commissioner and be effective until all judicial
52-1 review of the order or decision is final.
52-2 (d) A facility operator waives all rights to contest the
52-3 violation or the amount of the penalty if the facility operator
52-4 does not send the money to the commissioner or post the bond within
52-5 the period prescribed by Subsection (b).
52-6 Sec. 506.012. REFUND OF ADMINISTRATIVE PENALTY. Not later
52-7 than the 30th day after the date of a judicial determination that
52-8 an administrative penalty against a facility operator should be
52-9 reduced or not assessed, the commissioner shall
52-10 (1) remit to the facility operator the appropriate
52-11 amount of any penalty payment plus accrued interest; or
52-12 (2) execute a release of the bond if the facility
52-13 operator has posted a bond.
52-14 Sec. 506.013. RECOVERY OF ADMINISTRATIVE PENALTY AND SUIT BY
52-15 ATTORNEY GENERAL. The attorney general at the request of the
52-16 commissioner may bring a civil action to recover an administrative
52-17 penalty under this chapter or to compel compliance.
52-18 Sec. 506.016. TRADE SECRETS. Facility operators must
52-19 substantiate trade secret claims to the Administrator of the EPA,
52-20 in accordance with EPCRA, Section 322.
52-21 Sec. 506.017. RULES; FEES. (a) The board may adopt rules
52-22 and administrative procedures reasonably necessary to carry out the
52-23 purposes of this chapter.
52-24 (b) The board may authorize the collection of annual fees
52-25 from facility operators for the filing of Tier Two Forms required
53-1 by this chapter. With the exception of Subsection (d), fees may be
53-2 used only to fund activities under this chapter. The fee shall not
53-3 exceed $50 for each required submission having no more than 75
53-4 hazardous chemicals or hazardous chemical categories, or $100 for
53-5 each required submission having more than 75 hazardous chemicals or
53-6 chemical categories.
53-7 (c) To minimize the fees, the department by rule shall
53-8 provide for consolidated filings of multiple Tier Two Forms for
53-9 facility operators covered by Subsection (b) if each of the Tier
53-10 Two Forms contains fewer than 25 items.
53-11 (d) The department may utilize up to ten percent (10%) of
53-12 the fees collected under this Section as grants to local emergency
53-13 planning committees to assist them to fulfill their
53-14 responsibilities under EPCRA.
53-15 SECTION 4. This Act takes effect September 1, 1993.
53-16 SECTION 5. The importance of this legislation and the
53-17 crowded condition of the calendars in both houses create an
53-18 emergency and an imperative public necessity that the
53-19 constitutional rule requiring bills to be read on three several
53-20 days in each house be suspended, and this rule is hereby suspended.