1-1 By: Saunders (Senate Sponsor - Truan) H.B. No. 1431
1-2 (In the Senate - Received from the House May 12, 1993;
1-3 May 13, 1993, read first time and referred to Committee on Natural
1-4 Resources; May 20, 1993, reported favorably by the following vote:
1-5 Yeas 9, Nays 0; May 20, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Sims x
1-9 Truan x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Brown x
1-14 Carriker x
1-15 Lucio x
1-16 Montford x
1-17 Ratliff x
1-18 Shelley x
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the Hazard Communication Act, the Manufacturing
1-22 Facility Community Right-to-Know Act, the Public Employer Community
1-23 Right-to-Know Act, and the Nonmanufacturing Facilities Community
1-24 Right-to-Know Act; providing for the collection of fees; providing
1-25 administrative, civil, and criminal penalties.
1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-27 SECTION 1. Chapter 502, Health and Safety Code, is amended
1-28 to read as follows:
1-29 CHAPTER 502. HAZARD COMMUNICATION ACT
1-30 Sec. 502.001. Short Title. This chapter may be cited as the
1-31 Hazard Communication Act.
1-32 Sec. 502.002. Findings; Purpose. (a) The legislature finds
1-33 that:
1-34 (1) the health and safety of persons <living and>
1-35 working in this state may be improved by providing access to
1-36 information regarding hazardous chemicals to which those persons
1-37 may be exposed during normal employment activities, during
1-38 emergency situations, or as a result of proximity to the
1-39 manufacture or use of those chemicals; and
1-40 (2) many employers in this state have established
1-41 suitable information programs for their employees and that access
1-42 to the information is required of most <all manufacturing>
1-43 employers under the federal Occupational Safety and Health
1-44 Administration's (OSHA) Hazard Communication Standard.
1-45 (b) It is the intent and purpose of this chapter to assure
1-46 that employers provide<, if the OSHA standard is not in effect,
1-47 accessibility to> information regarding hazardous chemicals in the
1-48 workplace <is provided> to<:>
1-49 <(1)> employees who may be exposed to those chemicals
1-50 in their workplace <manufacturing or nonmanufacturing employer
1-51 workplaces;>
1-52 <(2) emergency service organizations responsible for
1-53 dealing with chemical hazards during an emergency; and>
1-54 <(3) the commissioner to make the information
1-55 available to the public through specific procedures>.
1-56 Sec. 502.0021. FEDERAL LAWS AND REGULATIONS. In this
1-57 chapter, a reference to a federal law or regulation means a
1-58 reference to the most current version of that law or regulation.
1-59 Sec. 502.003. Definitions. In this chapter:
1-60 (1) "Article" means a manufactured item:
1-61 (A) that is formed to a specific shape or design
1-62 during manufacture;
1-63 (B) that has end-use functions dependent in
1-64 whole or in part on its shape or design during end use; and
1-65 (C) that does not release, or otherwise result
1-66 in exposure to, a hazardous chemical under normal conditions of
1-67 use.
1-68 (2) "Board" means the Texas Board of Health.
2-1 (3) <(2)> "Chemical manufacturer" means an employer in
2-2 Standard Industrial Classification (SIC) Codes 20-39 with a
2-3 workplace where chemicals are produced for use or distribution.
2-4 (4) <(3)> "Chemical name" means:
2-5 (A) the scientific designation of a chemical in
2-6 accordance with the nomenclature system developed by the
2-7 International Union of Pure and Applied Chemistry (IUPAC) or the
2-8 Chemical Abstracts Service (CAS) rules of nomenclature; or
2-9 (B) a name that clearly identifies the chemical
2-10 for the purpose of conducting a hazard evaluation.
2-11 <(4) "Commissioner" means the commissioner of health.>
2-12 (5) "Common name" means a designation of
2-13 identification, such as a code name, code number, trade name, brand
2-14 name, or generic name, used to identify a chemical other than by
2-15 its chemical name.
2-16 (6) "Department" means the Texas Department of Health.
2-17 (7) "Designated representative" means the individual
2-18 or organization to whom an employee gives written authorization to
2-19 exercise the employee's rights under this chapter, except that a
2-20 recognized or certified collective bargaining agent is a designated
2-21 representative regardless of written employee authorization.
2-22 (8) "Director" means the director of the Texas
2-23 Department of Health.
2-24 (9) "Distributor" means a business in Standard
2-25 Industrial Classification Major Industry Group 516 or 517<, other
2-26 than a chemical manufacturer or importer,> that supplies hazardous
2-27 chemicals to an employer who must comply with this Act <other
2-28 distributors or to purchasers>.
2-29 (10) <(9)> "Employee" means a person who may be or may
2-30 have been exposed to hazardous chemicals in the person's workplace
2-31 under normal operating conditions or foreseeable emergencies, and
2-32 includes a person working for this state, a person working for a
2-33 political subdivision of this state, or a member of a volunteer
2-34 emergency service organization or, if the applicable OSHA standard
2-35 or MSHA standard is not in effect, a person working for a private
2-36 employer. Workers such as office workers or accountants who
2-37 encounter hazardous chemicals only in nonroutine, isolated
2-38 instances are not employees for purposes of this chapter <The term
2-39 does not include an office worker, a ground maintenance worker,
2-40 security personnel, or nonresident management unless the person's
2-41 job performance routinely involves potential exposure to hazardous
2-42 chemicals>.
2-43 (11) "Employer" means a person engaged in private
2-44 business who is regulated by the federal Occupational Safety and
2-45 Health Act of 1970 (Pub. L. No. 91-596), the Federal Coal Mine
2-46 Health and Safety Act of 1969 (Pub. L. No. 91-173), or the Federal
2-47 Mine Safety and Health Amendments Act of 1977 (Pub. L. No. 95-164)
2-48 on the effective date of this Act, or the state or a political
2-49 subdivision of the state, including a state, county, or municipal
2-50 agency, a public school, a college or university, a river authority
2-51 or publicly owned utility, a volunteer emergency service
2-52 organization, and other similar employers. The term does not
2-53 include any person to whom the federal Occupational Safety and
2-54 Health Act of 1970 (Pub. L. No. 91-596), the Federal Coal Mine
2-55 Health and Safety Act of 1969 (Pub. L. No. 91-173), or the Federal
2-56 Mine Safety and Health Amendments Act of 1977 (Pub. L. No. 95-164)
2-57 is applicable if that employer is covered by the OSHA standard or
2-58 the other two federal laws.
2-59 (12) <(10)> "Expose" or "exposure" means that an
2-60 employee is subjected to a hazardous chemical in the course of
2-61 employment through any route of entry, including inhalation,
2-62 ingestion, skin contact, or absorption. The term includes
2-63 potential, possible, or accidental exposure under normal conditions
2-64 of use or in a reasonably foreseeable emergency.
2-65 (13) <(11) "Fire chief" means the elected or paid
2-66 administrative head of a fire department.>
2-67 <(12)> "Hazardous chemical" or "chemical" means an
2-68 element, <chemical> compound, or mixture of elements or compounds
2-69 that is a physical hazard or health hazard as defined by the OSHA
2-70 standard in 29 CFR Section 1910.1200(c), or a hazardous substance
3-1 as defined by the OSHA standard in 29 CFR Section 1910.1200(d)(3),
3-2 or by OSHA's written interpretations. A hazard determination may
3-3 be made by employers who choose not to rely on the evaluations made
3-4 by their suppliers if there are relevant qualitative or
3-5 quantitative differences. A hazard determination shall involve the
3-6 best professional judgment.
3-7 (14) "Health hazard" has the meaning given that term
3-8 by the OSHA standard (29 CFR 1910.1200(c)).
3-9 (15) "Identity" means a chemical or common name, or
3-10 alphabetical or numerical identification, that is indicated on the
3-11 material safety data sheet (MSDS) for the chemical. The identity
3-12 used must permit cross-references to be made among the workplace
3-13 chemical list, the label, and the MSDS.
3-14 (16) <(13)> "Label" means any written, printed, or
3-15 graphic material displayed on or affixed to a container of
3-16 hazardous chemicals.
3-17 (17) <(14) "Manufacturing employer" means an employer
3-18 with a workplace classified in Standard Industrial Classification
3-19 (SIC) Codes 20-39 who manufactures or uses a hazardous chemical.>
3-20 <(15)> "Material Safety Data Sheet" ("MSDS") means a
3-21 document containing chemical hazard and safe handling information
3-22 that is prepared in accordance with the requirements of the OSHA
3-23 standard for that document.
3-24 (18) "MSHA standard" means the Hazard Communication
3-25 Standard issued by the Mining Safety and Health Administration.
3-26 (19) <(16) "Nonmanufacturing employer" or "employer"
3-27 means an employer with a workplace in Standard Industrial
3-28 Classification (SIC) Codes 46-49 (pipelines, transportation
3-29 services, communications, and electric, gas, and sanitary
3-30 services), 51 (wholesale trade, nondurable goods), 75 (automotive
3-31 repair, services, and garages), 76 (miscellaneous repair services),
3-32 80 (health services), 82 (educational services), and 84 (museums,
3-33 art galleries, and botanical and zoological gardens); this state
3-34 and its political subdivisions; and volunteer emergency service
3-35 organizations. If the OSHA standard is not in effect, "employer"
3-36 also includes manufacturing employer.>
3-37 <(17)> "OSHA standard" means the Hazard Communication
3-38 Standard issued by the Occupational Safety and Health
3-39 Administration and codified as 29 CFR Section 1910.1200.
3-40 (20) "Physical hazard" means a chemical for which
3-41 there is scientifically valid evidence that it is a combustible
3-42 liquid, a compressed gas, explosive, flammable, an organic
3-43 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
3-44 water-reactive in terms defined in the OSHA standard.
3-45 (21) "Temporary workplace" means a stationary
3-46 workplace that is staffed less than 20 hours a week. A temporary
3-47 workplace may be considered to be a work area of the headquarters
3-48 workplace from which employees are routinely dispatched. Temporary
3-49 workplaces may include pumping stations, emergency response sites,
3-50 and similar workplaces.
3-51 (22) <(18)> "Work area" means a room, a <or> defined
3-52 space, a utility structure, or an emergency response site in a
3-53 workplace where hazardous chemicals are present, produced, or used
3-54 and where employees are present.
3-55 (23) <(19)> "Workplace" means an establishment, job
3-56 site, or project, at one geographical location containing one or
3-57 more work areas, with or without buildings, that is staffed 20 or
3-58 more hours a week.
3-59 (24) <(20)> "Workplace chemical list" means a list of
3-60 hazardous chemicals developed under Section 502.005(a) <or 29 CFR
3-61 Section 1910.1200(e)(i)>.
3-62 Sec. 502.004. APPLICABILITY OF CHAPTER. (a) Except as
3-63 provided by Subsection (b) <If the OSHA standard is not in effect>,
3-64 this chapter applies only to employers who are not required to
3-65 comply with the OSHA standard, the Federal Coal Mine Health and
3-66 Safety Act of 1969 (Pub. L. No. 91-173), or the Federal Mine Safety
3-67 and Health Amendments Act of 1977 (Pub. L. No. 95-164)
3-68 <manufacturing employers and distributors>.
3-69 (b) Chemical manufacturers, importers, and distributors
3-70 shall provide MSDSs as required by Section 502.006. Penalties
4-1 provided by Sections 502.014, 502.015, and 502.016 may be assessed
4-2 against chemical manufacturers, importers, and distributors for
4-3 failure to provide MSDSs <If the OSHA standard is in effect,
4-4 manufacturing employers and distributors who are regulated by and
4-5 complying with the OSHA standard are required to comply only with
4-6 Sections 502.005(d) and (e); 502.006(a) and (d); 502.008;
4-7 502.012(d), (e), and (f); and 502.013(b), (c), (d), and (e)>.
4-8 (c) If an employer is covered by both this chapter and
4-9 Chapter 125, Agriculture Code, the employer is required to comply
4-10 only with this chapter <Nonmanufacturing employers who adopt and
4-11 comply with the OSHA standard may be certified by the commissioner
4-12 as being in compliance with this chapter, except for Sections
4-13 502.005(d) and (e); 502.006(a) and (d); 502.008; 502.012(d), (e),
4-14 and (f); and 502.013(b), (c), (d), and (e). The commissioner shall
4-15 make the certification annually>.
4-16 (d) This chapter, except Section <Sections 502.008(a) and>
4-17 502.009, does not apply to a <workplace where a> hazardous chemical
4-18 in a sealed and labeled package that is received and subsequently
4-19 sold or transferred in that package if:
4-20 (1) the seal and label remain <remains> intact while
4-21 the chemical is in the workplace; and
4-22 (2) the chemical does not remain in the workplace
4-23 longer than five working days.
4-24 (e) This chapter does not require labeling of the following
4-25 chemicals:
4-26 (1) any pesticide, as that term is defined in the
4-27 Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
4-28 Section 136 et seq.), when subject to the labeling requirements of
4-29 that Act and labeling regulations issued under that Act by the
4-30 Environmental Protection Agency;
4-31 (2) any food, food additive, color additive, drug,
4-32 cosmetic, or medical or veterinary device, including materials
4-33 intended for use as ingredients in those products such as flavors
4-34 and fragrances, as those terms are defined in the Federal Food,
4-35 Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) and
4-36 regulations issued under that Act, when they are subject to the
4-37 labeling requirements under that Act by the Food and Drug
4-38 Administration;
4-39 (3) any distilled spirits that are beverage alcohols,
4-40 wine, or malt beverages intended for nonindustrial use, as those
4-41 terms are defined in the Federal Alcohol Administration Act (27
4-42 U.S.C. Section 201 et seq.) and regulations issued under that Act,
4-43 when subject to the labeling requirements of that Act and labeling
4-44 regulations issued under that Act by the Bureau of Alcohol,
4-45 Tobacco, and Firearms; and
4-46 (4) any consumer product or hazardous substance, as
4-47 those terms are defined in the Consumer Product Safety Act (15
4-48 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
4-49 (15 U.S.C. Section 1261 et seq.), respectively, when subject to a
4-50 consumer product safety standard or labeling requirement of those
4-51 Acts or regulations issued under those Acts by the Consumer Product
4-52 Safety Commission.
4-53 (f) This chapter does not apply to <the following>:
4-54 (1) any hazardous waste, as that term is defined by
4-55 the federal Solid Waste Disposal Act, as amended by the Resource
4-56 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
4-57 Section 6901 et seq.), when subject to regulations issued under
4-58 that Act by the Environmental Protection Agency;
4-59 (2) a chemical in a laboratory under the direct
4-60 supervision or guidance of a technically qualified individual if:
4-61 (A) labels on incoming containers of chemicals
4-62 are not removed or defaced;
4-63 (B) the employer complies with Sections 502.006
4-64 and 502.009 with respect to laboratory employees; and
4-65 (C) the laboratory is not used primarily to
4-66 produce hazardous chemicals in bulk for commercial purposes;
4-67 (3) tobacco or tobacco products;
4-68 (4) wood or wood products;
4-69 (5) articles;
4-70 (6) food, drugs, cosmetics, or alcoholic beverages in
5-1 a retail food sale establishment that are packaged for sale to
5-2 consumers;
5-3 (7) food, drugs, or cosmetics intended for personal
5-4 consumption by an employee while in the workplace;
5-5 (8) any consumer product or hazardous substance, as
5-6 those terms are defined in the Consumer Product Safety Act (15
5-7 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
5-8 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
5-9 demonstrate it is used in the workplace in the same manner as
5-10 normal consumer use and if the use results in a duration and
5-11 frequency of exposure that is not greater than exposures
5-12 experienced by consumers;
5-13 (9) any drug, as that term is defined in the Federal
5-14 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) <an
5-15 article that:>
5-16 <(A) is formed to a specific shape or design
5-17 during manufacture;>
5-18 <(B) has an end use function dependent in whole
5-19 or in part on the article's shape or design during end use; and>
5-20 <(C) does not release or otherwise result in
5-21 exposure to a hazardous chemical under normal conditions of use;>
5-22 <(2) a product intended for personal consumption by an
5-23 employee in the workplace;>
5-24 <(3) a retail food sale establishment or other retail
5-25 trade establishment, except processing and repair area;>
5-26 <(4) a food, food additive, color additive, drug, or
5-27 cosmetic as those terms are defined by the federal Food, Drug, and
5-28 Cosmetic Act (21 U.S.C. Section 201 et seq.) or a distilled
5-29 spirit, wine, or malt beverage as those terms are defined by the
5-30 federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.);>
5-31 <(5) a chemical in a laboratory under the direct
5-32 supervision or guidance of a technically qualified individual if:>
5-33 <(A) labels on incoming containers of chemicals
5-34 are not removed or defaced;>
5-35 <(B) material safety data sheets received are
5-36 maintained and made accessible to employees and students;>
5-37 <(C) the laboratory complies with Sections
5-38 502.008 and 502.009; and>
5-39 <(D) the laboratory is not used primarily to
5-40 produce hazardous chemicals in bulk for commercial purposes;>
5-41 <(6) a product labeled in accordance with the federal
5-42 Insecticide, Fungicide, and Rodenticide Act (42 U.S.C. Section 136
5-43 et seq.);>
5-44 <(7) hazardous waste regulated in accordance with the
5-45 federal Resource Conservation and Recovery Act (42 U.S.C. Section
5-46 6901 et seq.)>; and
5-47 (10) <(8)> radioactive waste.
5-48 Sec. 502.005. WORKPLACE CHEMICAL LIST. (a) For the purpose
5-49 of worker right-to-know, an <An> employer shall compile and
5-50 maintain a workplace chemical list that contains the following
5-51 information for each hazardous chemical normally present <used or
5-52 stored> in the workplace or temporary workplace in excess of 55
5-53 gallons or 500 pounds or in excess of an amount that the board
5-54 determines by rule for certain highly toxic or dangerous hazardous
5-55 chemicals:
5-56 (1) the identity <chemical name and the common name>
5-57 used on the MSDS and container label; and
5-58 (2) <the nomenclature used in identifying the chemical
5-59 name;>
5-60 <(3)> the work area in which the hazardous chemical is
5-61 normally present <stored or used>.
5-62 (b) The employer shall update the workplace chemical list as
5-63 necessary but at least by December 31 of each <once a> year. Each
5-64 workplace chemical list shall be dated and signed by the person
5-65 responsible for compiling the information.
5-66 (c) The workplace chemical list may be prepared for the
5-67 workplace as a whole or for each work area or temporary workplace
5-68 and must be readily available to employees and their
5-69 representatives. All <New or newly assigned> employees shall be
5-70 made aware of the workplace chemical list before working with or in
6-1 a work area containing hazardous chemicals.
6-2 (d) <An employer or manufacturing employer shall give the
6-3 commissioner a workplace chemical list. An employer or
6-4 manufacturing employer beginning operation shall give the
6-5 commissioner the workplace chemical list not later than the 60th
6-6 day after the date on which the employer or manufacturing employer
6-7 begins operation.>
6-8 <(e)> An <employer or manufacturing> employer shall maintain
6-9 a workplace chemical list for at least 30 years. The <employer or
6-10 manufacturing> employer shall send complete records to the director
6-11 <commissioner> if the employer <business> ceases to operate <in
6-12 this state>.
6-13 Sec. 502.006. MATERIAL SAFETY DATA SHEET. (a) A chemical
6-14 manufacturer or distributor shall provide appropriate material
6-15 safety data sheets to employers who acquire <purchasers of>
6-16 hazardous chemicals in this state with each initial shipment and
6-17 with the first shipment after an MSDS is updated. The MSDSs must
6-18 conform to the most current requirements of the OSHA standard.
6-19 (b) An employer shall maintain a legible copy of a <the
6-20 most> current MSDS <received from a manufacturer or distributor>
6-21 for each hazardous chemical purchased. If the employer does not
6-22 have a current <manufacturer or distributor does not provide an>
6-23 MSDS for a hazardous chemical <on the workplace chemical list> when
6-24 the chemical is received at the workplace, the employer shall
6-25 request an MSDS in writing from the manufacturer or distributor in
6-26 a timely manner or shall otherwise obtain a current MSDS. The
6-27 manufacturer or distributor shall respond with an appropriate MSDS
6-28 in a timely manner.
6-29 (c) Material safety data sheets shall be readily available,
6-30 on request, for review by employees or designated representatives
6-31 at each workplace.
6-32 (d) A copy of an MSDS maintained by an employer under this
6-33 section shall be provided to the director <commissioner> on
6-34 request. <The commissioner shall request an MSDS from an employer
6-35 or manufacturing employer when a person requests an MSDS from the
6-36 commissioner and the person's request is based on that person's
6-37 review of an employer's or manufacturing employer's workplace
6-38 chemical list.>
6-39 Sec. 502.007. LABEL. (a) A label on an existing <incoming>
6-40 container of a hazardous chemical may not be removed or defaced
6-41 unless it is illegible, inaccurate, or does not conform to the OSHA
6-42 standard or other applicable labeling requirement. Primary
6-43 containers must be relabeled with at least the identity appearing
6-44 on the MSDS, the pertinent physical and health hazards, including
6-45 the organs that would be affected, and the manufacturer's name and
6-46 address. Except as provided by Subsection (b), secondary
6-47 containers must be relabeled with at least the identity appearing
6-48 on the MSDS and appropriate hazard warnings.
6-49 (b) An employee may not be required to work with a hazardous
6-50 chemical from an unlabeled container except for a portable
6-51 container intended for the immediate use of the employee who
6-52 performs the transfer.
6-53 Sec. 502.008. <EMERGENCY INFORMATION. (a) An employer or
6-54 manufacturing employer who normally stores a hazardous chemical in
6-55 an amount in excess of 55 gallons or 500 pounds or in excess of an
6-56 amount the board determines by rule for certain highly toxic or
6-57 dangerous hazardous chemicals shall provide to the fire chief of
6-58 the fire department having jurisdiction over the workplace, in
6-59 writing, the names and telephone numbers of knowledgeable
6-60 representatives of the employer or manufacturing employer who can
6-61 be contacted for further information or contacted in case of an
6-62 emergency.>
6-63 <(b) Each employer or manufacturing employer, on request,
6-64 shall provide a copy of the workplace chemical list to the fire
6-65 chief. The employer shall notify the fire chief of any significant
6-66 changes to the workplace chemical list.>
6-67 <(c) The fire chief or the fire chief's representative, on
6-68 request, may conduct on site inspections of the chemicals on the
6-69 workplace chemical list for the sole purpose of planning fire
6-70 department activities in case of an emergency.>
7-1 <(d) An employer or a manufacturing employer, on request,
7-2 shall give the fire chief a copy of the MSDS for any chemical on
7-3 the workplace chemical list.>
7-4 <(e) The fire chief shall make the workplace chemical list
7-5 and MSDSs available to members of the fire department and to other
7-6 personnel outside the fire department who are responsible for
7-7 preplanning emergency activities. The fire chief may not otherwise
7-8 distribute the information without approval of the employer or
7-9 manufacturing employer.>
7-10 <Sec. 502.009.> OUTREACH PROGRAM. (a) The director
7-11 <commissioner> shall develop an outreach program that:
7-12 (1) consists of an education and training program in
7-13 the form of instructional materials to assist employers in
7-14 fulfilling the requirements of Section 502.009 <502.010>; and
7-15 (2) includes the development and distribution of a
7-16 supply of informational leaflets concerning employer's duties,
7-17 employee rights, <the public's ability to obtain information under
7-18 this chapter,> the outreach program, and the effects of hazardous
7-19 chemicals.
7-20 (b) The director <commissioner> may contract with a public
7-21 institution of higher education or other public or private
7-22 organization to develop and implement the outreach program.
7-23 (c) The director <commissioner> shall develop and provide to
7-24 each employer a suitable form of notice providing employees with
7-25 information relating to employee rights under this chapter.
7-26 (d) The director <commissioner> shall publicize the
7-27 availability of information to answer inquiries from employees,
7-28 employers, or the public in this state concerning the effects of
7-29 hazardous chemicals.
7-30 (e) In cooperation with the director <commissioner>, an
7-31 employer may provide an outreach program in the community.
7-32 Sec. 502.009 <502.010>. EMPLOYEE EDUCATION PROGRAM. (a) An
7-33 employer shall provide<, at least once a year,> an education and
7-34 training program for employees who use or handle hazardous
7-35 chemicals.
7-36 (b) An employer shall develop, implement, and maintain at
7-37 the workplace a written hazard communication program for the
7-38 workplace that describes how the criteria specified in this chapter
7-39 will be met.
7-40 (c) An education and training program must include, as
7-41 appropriate:
7-42 (1) information on interpreting labels and MSDSs and
7-43 the relationship between those two methods of hazard communication;
7-44 (2) the location by work area, acute and chronic
7-45 effects, and safe handling of hazardous chemicals known to be
7-46 present in the employees' work area and to which the employees may
7-47 be exposed;
7-48 (3) the proper use of protective equipment and first
7-49 aid treatment to be used with respect to the hazardous chemicals to
7-50 which the employees may be exposed; and
7-51 (4) general safety instructions on the handling,
7-52 cleanup procedures, and disposal of hazardous chemicals.
7-53 (d) Training may be conducted by categories of chemicals.
7-54 An employer must advise employees that information is available on
7-55 the specific hazards of individual chemicals through the MSDSs.
7-56 Protective equipment and first aid treatment may be by categories
7-57 of hazardous chemicals.
7-58 (e) <Not later than the 30th day after an employer provides
7-59 an education and training program, the employer shall report to the
7-60 commissioner that the program has been provided to the employees.>
7-61 <(c)> An employer shall provide additional instruction to an
7-62 employee <employees> when the potential for exposure to hazardous
7-63 chemicals in the employee's work area increases significantly
7-64 <changes> or when the employer receives new and significant
7-65 information concerning the hazards of a chemical in the employee's
7-66 work area. The addition of new chemicals alone does not
7-67 necessarily require additional training.
7-68 (f) <(d)> An employer shall provide training to a new or
7-69 newly assigned employee before the employee works with or in a work
7-70 area containing a hazardous chemical.
8-1 (g) An employer shall keep the written hazard communication
8-2 program and a record of each training session given to employees,
8-3 including the date, a roster of the employees who attended, the
8-4 subjects covered in the training session, and the names of the
8-5 instructors. Those records shall be maintained for at least five
8-6 years by the employer. The department shall have access to those
8-7 records and may interview employees during inspections.
8-8 (h) Emergency service organizations shall provide, to their
8-9 members or employees who may encounter hazardous chemicals during
8-10 an emergency, information on recognizing, evaluating, and
8-11 controlling exposure to the chemicals.
8-12 (i) <(e) An employer shall keep a record of the dates of
8-13 training sessions given to employees.>
8-14 <(f) An education and training program must include, as
8-15 appropriate:>
8-16 <(1) information on interpreting labels and MSDSs and
8-17 the relationship between those two methods of hazard communication;>
8-18 <(2) the location, acute and chronic effects, and safe
8-19 handling of hazardous chemicals used by the employees;>
8-20 <(3) protective equipment and first aid treatment to
8-21 be used with respect to the hazardous chemicals used by the
8-22 employees; and>
8-23 <(4) general safety instructions on the handling,
8-24 cleanup procedures, and disposal of hazardous chemicals.>
8-25 <(g)> As part of an outreach program created in accordance
8-26 with Section 502.008 <502.009>, the director <commissioner> shall
8-27 develop an education and training assistance program to assist
8-28 employers who are unable to develop the programs because of size or
8-29 other practical considerations. The program shall be made
8-30 available to those employers on request.
8-31 Sec. 502.010 <502.011>. LIABILITY UNDER OTHER LAW.
8-32 Providing information to an employee does not affect:
8-33 (1) the liability of an employer with regard to the
8-34 health and safety of an employee or other person exposed to
8-35 hazardous chemicals;
8-36 (2) the employer's responsibility to take any action
8-37 to prevent occupational disease as required under other law; or
8-38 (3) any other duty or responsibility of a
8-39 manufacturer, producer, or formulator to warn ultimate users of a
8-40 hazardous chemical under other law.
8-41 Sec. 502.011 <502.012>. COMPLAINTS AND<,> INVESTIGATIONS<,
8-42 AND PENALTIES>. (a) The director <commissioner> or the director's
8-43 <commissioner's> representative shall investigate in a timely
8-44 manner a complaint received in writing from an employee or an
8-45 employee's designated representative relating to an alleged
8-46 violation of this chapter by an <a nonmanufacturing> employer.
8-47 (b) A complaint received from a person <an employee or an
8-48 employee's designated representative> relating to an alleged
8-49 violation <by a manufacturing employer> shall be referred <by the
8-50 complainant> to the federal Occupational Safety and Health
8-51 Administration (OSHA) or to the federal Mine Safety and Health
8-52 Administration (MSHA) if the complaint is related to an applicable
8-53 OSHA or MSHA requirement and the applicable OSHA or MSHA standard
8-54 is in effect. The director <commissioner> or the director's
8-55 <commissioner's> representative shall investigate the complaint if:
8-56 (1) the applicable OSHA or MSHA standard is not in
8-57 effect; or
8-58 (2) the complaint is based on a requirement of this
8-59 chapter.
8-60 (c) On presentation of appropriate credentials, an officer
8-61 or representative of the director <commissioner> may enter a
8-62 workplace at reasonable times to inspect and investigate
8-63 complaints.
8-64 (d) The department may find multiple violations by an
8-65 employer based on distinct requirements of this chapter <An
8-66 employer or manufacturing employer found to be in violation of this
8-67 chapter must comply not later than the 14th day after the date of
8-68 the finding. An employer or manufacturing employer that does not
8-69 comply before the 15th day after the date of written notification
8-70 of a violation is subject to an administrative penalty of not more
9-1 than $500 for each violation.>
9-2 <(e) An employer or manufacturing employer who knowingly
9-3 discloses false information or negligently fails to disclose a
9-4 hazard as required by this chapter is subject to a civil penalty of
9-5 not more than $5,000 for each violation.>
9-6 <(f) An employer or manufacturing employer who proximately
9-7 causes an injury to an individual by knowingly disclosing false
9-8 hazard information or knowingly failing to disclose hazard
9-9 information as required by this chapter is subject to a criminal
9-10 fine of not more than $25,000.>
9-11 <(g) This section does not affect any other right of an
9-12 employee or any other person to receive compensation for damages
9-13 under other law>.
9-14 Sec. 502.012. REPORTING FATALITIES AND INJURIES.
9-15 (a) Within 48 hours after the occurrence of an employee accident
9-16 that directly or indirectly involves chemical exposure or that
9-17 involves asphyxiation, and that is fatal to one or more employees
9-18 or results in the hospitalization of five or more employees, the
9-19 employer of any of the employees so injured or killed shall report
9-20 the accident either orally or in writing to the department.
9-21 (b) The report to the department shall relate the
9-22 circumstances of the accident, the number of fatalities, and the
9-23 extent of any injuries. If it is necessary to complete the
9-24 investigation of an incident, the department may require additional
9-25 reports in writing as necessary.
9-26 Sec. 502.013. ADVISORY COMMITTEE. The board shall appoint
9-27 an advisory committee to assist the department in reviewing
9-28 policies and procedures necessary to implement this chapter. The
9-29 advisory committee may consist of not more than 10 members
9-30 representing municipalities, counties, state agencies other than
9-31 the department, public institutions of higher education, public
9-32 employee organizations representing employees of those groups, and
9-33 the public.
9-34 Sec. 502.014. ADMINISTRATIVE PENALTY. (a) The director may
9-35 assess an administrative penalty against an employer who violates
9-36 this chapter, board rules adopted under this chapter, or an order
9-37 issued under this chapter.
9-38 (b) If the department finds one or more violations of this
9-39 chapter, the director may issue a notice of violation to the
9-40 employer. The notice of violation shall specifically describe the
9-41 violation, refer to the applicable section or subsection of the
9-42 chapter, and state the amount of the penalty, if any, to be
9-43 assessed by the director.
9-44 (c) An employer who receives a notice of violation may
9-45 respond to the department in writing within 15 days after the date
9-46 of receipt of the notice of violation in one of the ways provided
9-47 by Subsection (d), (e), or (f).
9-48 (d) If the employer disputes the validity of the violation
9-49 and has reason to believe that the findings of the department were
9-50 based on inaccurate or incomplete information, the employer may
9-51 request an informal conference with representatives of the
9-52 department. The purpose of an informal conference is to permit the
9-53 employer to meet with department representatives to discuss the
9-54 basis of the violation and to provide information to the
9-55 department. The department shall schedule the informal conference.
9-56 A request for an informal conference made in bad faith is a
9-57 violation of this chapter.
9-58 (e) The employer may correct the violation and certify to
9-59 the department that the corrections have been made.
9-60 (f) The employer may request a hearing.
9-61 (g) Following an informal conference, the department shall
9-62 respond in writing to the employer, stating whether the department
9-63 intends to withdraw the notice of violation or pursue it. If the
9-64 department intends to pursue the notice of violation, the employer
9-65 may respond as provided by either Subsection (h) or (i) within 10
9-66 days after the date of receipt of the department's correspondence.
9-67 (h) The employer may correct the violation and certify to
9-68 the department that the corrections have been made.
9-69 (i) The employer may request a hearing.
9-70 (j) A request for an informal conference or a statement by
10-1 an employer that the employer is in compliance with the provision
10-2 of this chapter does not waive the employer's right to a hearing.
10-3 (k) The director may not assess an administrative penalty
10-4 for any violation that has been corrected within 15 days after the
10-5 date of receipt of the notice of violation, the date of receipt of
10-6 the department's response by the employer, or 10 days after the
10-7 date of receipt by the employer of the department's response to the
10-8 informal conference provided for in Subsection (c), whichever is
10-9 later.
10-10 (l) In determining the amount of the penalty, the director
10-11 shall consider:
10-12 (1) the employer's previous violations;
10-13 (2) the seriousness of the violation;
10-14 (3) any hazard to the health and safety of the
10-15 employee;
10-16 (4) the employer's demonstrated good faith;
10-17 (5) the duration of the violation; and
10-18 (6) other matters as justice may require.
10-19 (m) Each day a violation continues may be considered a
10-20 separate violation.
10-21 (n) The penalty may not exceed $500 for each violation.
10-22 Sec. 502.0141. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
10-23 (a) An administrative penalty may be assessed only after an
10-24 employer charged with a violation is given an opportunity for a
10-25 hearing.
10-26 (b) If a hearing is held, the director shall make findings
10-27 of fact and shall issue a written decision regarding the occurrence
10-28 of the violation and the amount of the penalty that may be
10-29 warranted.
10-30 (c) If the employer charged with the violation does not
10-31 request a hearing in a timely manner, the director may assess a
10-32 penalty after determining that a violation has occurred and the
10-33 amount of the penalty that may be warranted.
10-34 (d) After making a determination under this section that a
10-35 penalty is to be assessed against an employer, the director shall
10-36 issue an order requiring that the employer pay the penalty.
10-37 (e) The director may consolidate a hearing held under this
10-38 section with another proceeding.
10-39 Sec. 502.0142. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
10-40 REVIEW. (a) Not later than the 30th day after the date an order
10-41 finding that a violation has occurred is issued, the director shall
10-42 inform the employer against whom the order is issued of the amount
10-43 of the penalty for the violation.
10-44 (b) Within 30 days after the date the director's order is
10-45 final as provided by Section 16(c), Administrative Procedure and
10-46 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
10-47 Statutes), the employer shall:
10-48 (1) pay the amount of the penalty;
10-49 (2) pay the amount of the penalty and file a petition
10-50 for judicial review contesting the occurrence of the violation, the
10-51 amount of the penalty, or both the occurrence of the violation and
10-52 the amount of the penalty; or
10-53 (3) without paying the amount of the penalty, file a
10-54 petition for judicial review contesting the occurrence of the
10-55 violation, the amount of the penalty, or both the occurrence of the
10-56 violation and the amount of the penalty.
10-57 (c) Within the 30-day period, an employer who acts under
10-58 Subsection (b)(3) may:
10-59 (1) stay enforcement of the penalty by:
10-60 (A) paying the amount of the penalty to the
10-61 court for placement in an escrow account; or
10-62 (B) giving to the court a supersedeas bond that
10-63 is approved by the court for the amount of the penalty and that is
10-64 effective until all judicial review of the director's order is
10-65 final; or
10-66 (2) request the court to stay enforcement of the
10-67 penalty by:
10-68 (A) filing with the court a sworn affidavit of
10-69 the employer stating that the employer is financially unable to pay
10-70 the amount of the penalty and is financially unable to give the
11-1 supersedeas bond; and
11-2 (B) giving a copy of the affidavit to the
11-3 director by certified mail.
11-4 (d) Subsection (c)(1) does not apply to the state or a
11-5 political subdivision. The penalty may not be enforced against the
11-6 state or a political subdivision until all judicial review has been
11-7 exhausted.
11-8 (e) If the director receives a copy of an affidavit under
11-9 Subsection (c)(2), the director may file with the court, within
11-10 five days after the date the copy is received, a contest to the
11-11 affidavit. The court shall hold a hearing on the facts alleged in
11-12 the affidavit as soon as practicable and shall stay the enforcement
11-13 of the penalty on finding that the alleged facts are true. The
11-14 employer who files an affidavit has the burden of proving that the
11-15 employer is financially unable to pay the amount of the penalty and
11-16 to give a supersedeas bond.
11-17 (f) If the employer does not pay the amount of the penalty
11-18 and the enforcement of the penalty is not stayed, the director may
11-19 refer the matter to the attorney general for collection of the
11-20 amount of the penalty.
11-21 (g) Judicial review of the order of the director:
11-22 (1) is instituted by filing a petition as provided by
11-23 Section 19, Administrative Procedure and Texas Register Act
11-24 (Article 6252-13a, Vernon's Texas Civil Statutes); and
11-25 (2) is under the substantial evidence rule.
11-26 (h) If the court sustains the occurrence of the violation,
11-27 the court may uphold or reduce the amount of the penalty and order
11-28 the employer to pay the full or reduced amount of the penalty. If
11-29 the court does not sustain the occurrence of the violation, the
11-30 court shall order that no penalty is owed.
11-31 (i) When the judgment of the court becomes final, the court
11-32 shall proceed under this subsection. If the employer paid the
11-33 amount of the penalty and if that amount is reduced or is not
11-34 upheld by the court, the court shall order that the appropriate
11-35 amount plus accrued interest be remitted to the employer. The
11-36 rate of the interest is the rate charged on loans to depository
11-37 institutions by the New York Federal Reserve Bank, and the interest
11-38 shall be paid for the period beginning on the date the penalty was
11-39 paid and ending on the date the penalty is remitted. If the
11-40 employer gave a supersedeas bond and if the amount of the penalty
11-41 is not upheld by the court, the court shall order the release of
11-42 the bond. If the employer gave a supersedeas bond and if the
11-43 amount of the penalty is reduced, the court shall order the release
11-44 of the bond after the employer pays the amount.
11-45 (j) All proceedings under this section are subject to the
11-46 Administrative Procedure and Texas Register Act (Article 6252-13a,
11-47 Vernon's Texas Civil Statutes).
11-48 Sec. 502.015. CIVIL PENALTY; INJUNCTION. (a) If it appears
11-49 that an employer has violated, is violating, or is threatening to
11-50 violate this chapter or any rule adopted or order issued under this
11-51 chapter, the director may request the attorney general or the
11-52 district, county, or city attorney of the municipality or county in
11-53 which the violation has occurred, is occurring, or may occur to
11-54 institute a civil suit for:
11-55 (1) injunctive relief to restrain the employer from
11-56 continuing the violation or threat of violation;
11-57 (2) the assessment and recovery of a civil penalty for
11-58 a violation; or
11-59 (3) both the injunctive relief and the civil penalty.
11-60 (b) The penalty may be in an amount not to exceed $2,000 a
11-61 day for each violation, with a total not to exceed $20,000 for that
11-62 violation.
11-63 (c) In determining the amount of the penalty, the court
11-64 shall consider the employer's history of previous violations, the
11-65 seriousness of the violation, any hazard to health and safety of
11-66 the public, the demonstrated good faith of the employer charged,
11-67 and other matters as justice may require.
11-68 (d) Any civil penalty recovered in a suit instituted by the
11-69 attorney general under this chapter shall be deposited in the state
11-70 treasury to the credit of the general revenue fund. Any civil
12-1 penalty recovered in a suit instituted by a local government under
12-2 this chapter shall be paid to the local government.
12-3 (e) This section does not affect any other right of an
12-4 employee or any other employer to receive compensation for damages
12-5 under other law.
12-6 Sec. 502.016. CRIMINAL PENALTY. An employer who is required
12-7 to disclose hazard information under this chapter and who
12-8 proximately causes an occupational disease or injury to an
12-9 individual by knowingly disclosing false hazard information or
12-10 knowingly failing to disclose hazard information provided on an
12-11 MSDS commits an offense that is punishable by a fine of not more
12-12 than $10,000 for each violation. Each day of violation constitutes
12-13 a separate offense, except that the fine may not exceed $100,000
12-14 for that violation. This section does not affect any other right
12-15 of an employee or any other employer to receive compensation for
12-16 damages under other law.
12-17 Sec. 502.017 <502.013>. EMPLOYEE NOTICE; RIGHTS OF
12-18 EMPLOYEES. (a) An employer shall post and maintain adequate
12-19 notice, at locations where notices are normally posted, informing
12-20 employees of their rights under this chapter. If the director
12-21 <commissioner> does not prepare the notice under Section
12-22 502.008 <502.009>, the employer shall prepare the notice.
12-23 (b) Employees who may be exposed to hazardous chemicals
12-24 shall be informed of the exposure and shall have access to the
12-25 workplace chemical list and MSDSs for the hazardous chemicals.
12-26 Employees, on request, shall be provided a copy of a specific MSDS
12-27 with any trade secret information deleted. In addition, employees
12-28 shall receive training concerning the hazards of the chemicals and
12-29 measures they can take to protect themselves from those hazards.
12-30 Employees shall be provided with appropriate personal protective
12-31 equipment. These rights are guaranteed.
12-32 (c) An employer <or a manufacturing employer> may not
12-33 discharge, cause to be discharged, otherwise discipline, or in any
12-34 manner discriminate against an employee because the employee has:
12-35 (1) filed a complaint;
12-36 (2) assisted an inspector of the department who may
12-37 make or is making an inspection under Section 502.011 <502.012>;
12-38 (3) instituted or caused to be instituted any
12-39 proceeding under or related to this chapter;
12-40 (4) testified or is about to testify in a proceeding
12-41 under this chapter; or
12-42 (5) exercised any rights afforded under this chapter
12-43 on behalf of the employee or on behalf of others.
12-44 (d) Pay, position, seniority, or other benefits may not be
12-45 lost as the result of the exercise of any right provided by this
12-46 chapter.
12-47 (e) A waiver by an employee of the benefits or requirements
12-48 of this chapter is void. An employer's <or a manufacturing
12-49 employer's> request or requirement that an employee waive any
12-50 rights under this chapter as a condition of employment is a
12-51 violation of this chapter.
12-52 <Sec. 502.014. TRADE SECRETS. (a) An employer who believes
12-53 that all or a part of the information required under Section
12-54 502.005 or Section 502.008(b) or (d) is a trade secret may withhold
12-55 the information if:>
12-56 <(1) material safety data sheets are available to
12-57 employees in the area where they work;>
12-58 <(2) hazard information concerning the trade secret
12-59 chemicals, or an MSDS with trade secret information deleted, is
12-60 provided, on request, to the fire chief and the commissioner;>
12-61 <(3) all relevant information is provided to a
12-62 physician diagnosing and treating a person exposed to the chemical,
12-63 under requirements provided by the OSHA standard in 29 CFR Section
12-64 1910.1200(i)(2); and>
12-65 <(4) the employer can substantiate the trade secret
12-66 claim.>
12-67 <(b) The commissioner, on the commissioner's initiative or
12-68 on the request of an employee, the employee's designated
12-69 representative, a fire chief, or a person who made a request under
12-70 Section 502.006(d), may request any or all of the data
13-1 substantiating the trade secret claim to determine whether a claim
13-2 made under Subsection (a) is valid.>
13-3 <(c) When making a determination of a trade secret claim,
13-4 the commissioner shall conduct a reasonable search of available
13-5 literature to determine whether the hazard information is accurate.>
13-6 <(d) Based on a review of the health and safety information
13-7 made available by the employer and on other available information,
13-8 the commissioner shall sign and add an addendum to the MSDS
13-9 stating:>
13-10 <(1) the commissioner's opinion that the MSDS reflects
13-11 a prudent assessment of the scientific evidence regarding hazards;
13-12 or>
13-13 <(2) if the commissioner determines that the MSDS does
13-14 not reflect such a prudent assessment, the commissioner's opinion
13-15 of a prudent assessment of the scientific evidence.>
13-16 <(e) The commissioner shall complete the assessment not
13-17 later than the 90th day after the date on which the commissioner
13-18 receives the information substantiating the trade secret claim.>
13-19 <(f) If the commissioner receives information marked
13-20 "confidential" by the employer, the commissioner shall:>
13-21 <(1) protect the information from disclosure; and>
13-22 <(2) return the information to the employer when a
13-23 final determination is made.>
13-24 <(g) An employer whose trade secret claim is determined to
13-25 be invalid under this section may petition for judicial review not
13-26 later than the 30th day after the date on which the employer was
13-27 notified by the commissioner that the trade secret claim is
13-28 invalid. Judicial review is by trial de novo in a district court
13-29 in Travis County.>
13-30 Sec. 502.018 <502.015>. STANDARD FOR PHYSICIAN TREATMENT.
13-31 For the purposes of this chapter, the requirements in the OSHA
13-32 standard for physicians treating employees (29 CFR 1910.1200(l))
13-33 apply to physicians treating persons.
13-34 Sec. 502.019 <502.016>. RULES<; FEES>. <(a)> The board may
13-35 adopt rules and administrative procedures reasonably necessary to
13-36 carry out the purposes of this chapter.
13-37 <(b) The board may authorize the collection of fees from
13-38 manufacturing and nonmanufacturing employers for the filing of
13-39 workplace chemical lists required by this chapter or for other
13-40 community right-to-know purposes under the department's
13-41 jurisdiction. The fees shall be paid annually and may not exceed
13-42 $50 for each required submission. To minimize the fees, the
13-43 department by rule shall provide for consolidated filings for
13-44 employers with multiple or temporary workplaces if the workplace
13-45 chemical lists contain fewer than 25 items.>
13-46 SECTION 2. Subtitle D, Title 6, Health and Safety Code, is
13-47 amended by adding Chapters 505-507 to read as follows:
13-48 CHAPTER 505. MANUFACTURING FACILITY COMMUNITY
13-49 RIGHT-TO-KNOW ACT
13-50 Sec. 505.001. SHORT TITLE. This chapter may be cited as the
13-51 Manufacturing Facility Community Right-To-Know Act.
13-52 Sec. 505.002. FINDINGS; PURPOSE. (a) The legislature finds
13-53 that:
13-54 (1) the health and safety of persons living in this
13-55 state may be improved by providing access to information regarding
13-56 hazardous chemicals to which those persons may be exposed during
13-57 emergency situations or as a result of proximity to the manufacture
13-58 or use of those chemicals; and
13-59 (2) many facility operators in this state have
13-60 established suitable information programs for their communities and
13-61 that access to the information is required of most facility
13-62 operators under the federal Emergency Planning and Community
13-63 Right-To-Know Act (EPCRA).
13-64 (b) It is the intent and purpose of this chapter to ensure
13-65 that accessibility to information regarding hazardous chemicals is
13-66 provided to:
13-67 (1) fire departments responsible for dealing with
13-68 chemical hazards during an emergency;
13-69 (2) local emergency planning committees and other
13-70 emergency planning organizations; and
14-1 (3) the director to make the information available to
14-2 the public through specific procedures.
14-3 Sec. 505.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
14-4 (a) In this chapter, a reference to a federal law or regulation
14-5 means a reference to the most current version of that law or
14-6 regulation.
14-7 (b) In this chapter, a reference to Standard Industrial
14-8 Classification (SIC), to nomenclature systems developed by the
14-9 International Union of Pure and Applied Chemistry (IUPAC) or the
14-10 Chemical Abstracts Service (CAS), or to other information,
14-11 including information such as classification codes, performance
14-12 standards, systematic names, standards, and systems described in
14-13 publications sponsored by private technical or trade organizations,
14-14 means a reference to the most current version of the publication.
14-15 Sec. 505.004. DEFINITIONS. In this chapter:
14-16 (1) "Article" means a manufactured item:
14-17 (A) that is formed to a specific shape or design
14-18 during manufacture;
14-19 (B) that has end-use functions dependent in
14-20 whole or in part on its shape or design during end use; and
14-21 (C) that does not release, or otherwise result
14-22 in exposure to, a hazardous chemical under normal conditions of
14-23 use.
14-24 (2) "Board" means the Texas Board of Health.
14-25 (3) "Chemical name" means:
14-26 (A) the scientific designation of a chemical in
14-27 accordance with the nomenclature system developed by the
14-28 International Union of Pure and Applied Chemistry (IUPAC) or the
14-29 Chemical Abstracts Service (CAS) rules of nomenclature; or
14-30 (B) a name that clearly identifies the chemical
14-31 for the purpose of conducting a hazard evaluation.
14-32 (4) "Common name" means a designation of
14-33 identification, such as a code name, code number, trade name, brand
14-34 name, or generic name, used to identify a chemical other than by
14-35 its chemical name.
14-36 (5) "Department" means the Texas Department of Health.
14-37 (6) "Director" means the director of the Texas
14-38 Department of Health.
14-39 (7) "EPA" means the United States Environmental
14-40 Protection Agency.
14-41 (8) "EPCRA" or "SARA Title III" means the federal
14-42 Emergency Planning and Community Right-To-Know Act, also known as
14-43 the Superfund Amendments and Reauthorization Act of 1986, Title
14-44 III, Pub. L. No. 99-499 et seq.
14-45 (9) "Extremely hazardous substance" means any
14-46 substance as defined in EPCRA, Section 302, or listed by the United
14-47 States Environmental Protection Agency in 40 CFR Part 355,
14-48 Appendices A and B.
14-49 (10) "Facility" means all buildings, equipment,
14-50 structures, and other stationary items that are located on a single
14-51 site or on contiguous or adjacent sites, that are owned or operated
14-52 by the same person, or by any person who controls, is controlled
14-53 by, or is under common control with that person, and that is in
14-54 Standard Industrial Codes (SIC) 20-39.
14-55 (11) "Facility operator" or "operator" means the
14-56 person who controls the day-to-day operations of the facility.
14-57 (12) "Fire chief" means the elected or paid
14-58 administrative head of a fire department.
14-59 (13) "Hazardous chemical" has the meaning given that
14-60 term by 29 CFR 1910.1200(c), except that the term does not
14-61 include:
14-62 (A) any food, food additive, color additive,
14-63 drug, or cosmetic regulated by the Food and Drug Administration;
14-64 (B) any substance present as a solid in any
14-65 manufactured item to the extent exposure to the substance does not
14-66 occur under normal conditions of use;
14-67 (C) any substance to the extent it is used for
14-68 personal, family, or household purposes, or is present in the same
14-69 form and concentration as a product packaged for distribution and
14-70 use by the public;
15-1 (D) any substance to the extent it is used in a
15-2 research laboratory or a hospital or other medical facility under
15-3 the direct supervision of a technically qualified individual; and
15-4 (E) any substance to the extent it is used in
15-5 routine agricultural operations or is a fertilizer held for sale by
15-6 a retailer to the ultimate consumer.
15-7 (14) "Health hazard" has the meaning given that term
15-8 by the OSHA standard (29 CFR 1910.1200(c)).
15-9 (15) "Identity" means any chemical or common name, or
15-10 alphabetical or numerical identification, that is indicated on the
15-11 material safety data sheet (MSDS) for the chemical. The identity
15-12 used must permit cross-references to be made among the facility
15-13 chemical list, the label, and the MSDS.
15-14 (16) "Label" means any written, printed, or graphic
15-15 material displayed on or affixed to a container of hazardous
15-16 chemicals.
15-17 (17) "Local emergency planning committee" means a
15-18 committee formed under the requirements of EPCRA, Section 301, and
15-19 recognized by the state emergency response commission for the
15-20 purposes of emergency planning and public information.
15-21 (18) "Material safety data sheet" or "MSDS" means a
15-22 document containing chemical hazard and safe handling information
15-23 that is prepared in accordance with the requirements of the OSHA
15-24 standard for that document.
15-25 (19) "OSHA standard" means the Hazard Communication
15-26 Standard issued by the Occupational Safety and Health
15-27 Administration and codified as 29 CFR Section 1910.1200.
15-28 (20) "Physical hazard" means a chemical for which
15-29 there is scientifically valid evidence that it is a combustible
15-30 liquid, a compressed gas, explosive, flammable, an organic
15-31 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
15-32 water-reactive in terms defined in the OSHA standard.
15-33 (21) "State emergency response commission" means the
15-34 state emergency management council or other committee appointed by
15-35 the governor in accordance with EPCRA.
15-36 (22) "Threshold planning quantity" means the minimum
15-37 quantity of an extremely hazardous substance for which a facility
15-38 owner or operator must participate in emergency planning, as
15-39 defined by the EPA pursuant to EPCRA, Section 302.
15-40 (23) "Tier two form" means:
15-41 (A) a form specified by the department under
15-42 Section 505.006 for listing hazardous chemicals as required by
15-43 EPCRA; or
15-44 (B) a form accepted by the EPA under EPCRA for
15-45 listing hazardous chemicals together with additional information
15-46 required by the department for administering its functions related
15-47 to EPCRA.
15-48 (24) "Workplace chemical list" means a list of
15-49 hazardous chemicals developed under 29 CFR Section 1910.1200(e)(i).
15-50 Sec. 505.005. APPLICABILITY OF CHAPTER. (a) Facility
15-51 operators whose facilities are in SIC Codes 20-39 shall comply with
15-52 this chapter.
15-53 (b) This chapter does not apply to a hazardous chemical in a
15-54 sealed package that is received and subsequently sold or
15-55 transferred in that package if:
15-56 (1) the seal remains intact while the chemical is in
15-57 the facility;
15-58 (2) the chemical does not remain in the facility
15-59 longer than five working days; and
15-60 (3) the chemical is not an extremely hazardous
15-61 substance at or above the threshold planning quantity or 500
15-62 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
15-63 Appendices A and B.
15-64 (c) This chapter does not apply to:
15-65 (1) any hazardous waste, as that term is defined by
15-66 the federal Solid Waste Disposal Act, as amended by the Resource
15-67 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
15-68 Section 6901 et seq.), when subject to regulations issued under
15-69 that Act by the EPA;
15-70 (2) tobacco or tobacco products;
16-1 (3) wood or wood products;
16-2 (4) articles;
16-3 (5) food, drugs, cosmetics, or alcoholic beverages in
16-4 a retail food sale establishment that are packaged for sale to
16-5 consumers;
16-6 (6) foods, drugs, or cosmetics intended for personal
16-7 consumption by an employee while in the facility;
16-8 (7) any consumer product or hazardous substance, as
16-9 those terms are defined in the Consumer Product Safety Act (15
16-10 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
16-11 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
16-12 demonstrate it is used in the facility in the same manner as normal
16-13 consumer use and if the use results in a duration and frequency of
16-14 exposure that is not greater than exposures experienced by
16-15 consumers;
16-16 (8) any drug, as that term is defined by the Federal
16-17 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
16-18 it is in solid, final form for direct administration to the
16-19 patient, such as tablets or pills;
16-20 (9) the transportation, including storage incident to
16-21 that transportation, of any substance or chemical subject to this
16-22 chapter, including the transportation and distribution of natural
16-23 gas; and
16-24 (10) radioactive waste.
16-25 (d) The director shall develop an outreach program
16-26 concerning the public's ability to obtain information under this
16-27 chapter similar to the outreach program under Section 502.008.
16-28 Sec. 505.006. FACILITY CHEMICAL LIST. (a) For the purpose
16-29 of community right-to-know, a facility operator covered by this
16-30 chapter shall compile and maintain a tier two form that contains
16-31 information on hazardous chemicals present in the facility in
16-32 quantities that meet or exceed thresholds determined by the EPA in
16-33 40 CFR Part 370, or at any other reporting thresholds as determined
16-34 by board rule for certain highly toxic or extremely hazardous
16-35 substances.
16-36 (b) Multiple facilities may be reported on the same tier two
16-37 form, with appropriate facility identifiers, if the hazardous
16-38 chemicals or hazardous chemical categories present at the multiple
16-39 facilities are in the same ranges. In multiple facility
16-40 reporting, the reporting thresholds must be applied to each
16-41 facility rather than to the total quantities present at all
16-42 facilities.
16-43 (c) Each tier two form shall be filed annually with the
16-44 appropriate fee according to the procedures specified by board
16-45 rules. The facility operator shall furnish a copy of each tier two
16-46 form to the fire chief of the fire department having jurisdiction
16-47 over the facility and to the appropriate local emergency planning
16-48 committee.
16-49 (d) The tier two form shall be used to comply with the
16-50 updating requirements in EPCRA Section 311, but a fee may not be
16-51 associated with filing the report.
16-52 (e) A facility operator shall file the tier two form with
16-53 the department not later than the 90th day after the date on which
16-54 the operator begins operation or has a reportable addition, at the
16-55 appropriate threshold, of a previously unreported hazardous
16-56 chemical or extremely hazardous substance. The operator shall
16-57 furnish a copy of each tier two form to the fire chief of the fire
16-58 department having jurisdiction over the facility and to the
16-59 appropriate local emergency planning committee.
16-60 (f) A facility operator shall file a material safety data
16-61 sheet with the department on the department's request.
16-62 (g) The department shall maintain records of the tier two
16-63 forms and other documents filed under this chapter or EPCRA for at
16-64 least 30 years.
16-65 (h) Except as provided by Section 505.015, documents filed
16-66 under this chapter are subject to the open records law, Chapter
16-67 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
16-68 6252-17a, Vernon's Texas Civil Statutes).
16-69 Sec. 505.007. DIRECT CITIZEN ACCESS TO INFORMATION.
16-70 (a) Except as otherwise provided by this section, a person may
17-1 request in writing copies of the facility's existing workplace
17-2 chemical list for community right-to-know purposes.
17-3 (b) Except as otherwise provided by this section, any
17-4 facility covered by this chapter shall furnish or mail, within 10
17-5 working days of the date of receipt of a request under Subsection
17-6 (a), either a copy of the facility's existing workplace chemical
17-7 list or a modified version of the most recent tier two form using a
17-8 500-pound threshold.
17-9 (c) Any facility that has received five requests under
17-10 Subsection (a) in a calendar month, four requests in a calendar
17-11 month for two or more months in a row, or more than 10 requests in
17-12 a year may elect to furnish the material to the department.
17-13 (d) Any facility electing to furnish the material to the
17-14 department under Subsection (c) may during that same filing period
17-15 inform persons making requests under Subsection (a) of the
17-16 availability of the information at the department and refer the
17-17 request to the department for that filing period. The notice to
17-18 persons making requests shall state the address of the department
17-19 and shall be mailed within seven days of the date of receipt of the
17-20 request, if by mail, and at the time of the request if in person.
17-21 Sec. 505.008. EMERGENCY PLANNING INFORMATION. (a) The fire
17-22 chief or the fire chief's representative, on request, may conduct
17-23 on-site inspections of the chemicals on the tier two form for the
17-24 sole purpose of planning fire department activities in case of an
17-25 emergency.
17-26 (b) A facility operator, on request, shall give the fire
17-27 chief or the local emergency planning committee such additional
17-28 information on types and amounts of hazardous chemicals present at
17-29 a facility as the requestor may need for emergency planning
17-30 purposes. A facility operator, on request, shall give the
17-31 director, the fire chief, or the local emergency planning committee
17-32 a copy of the MSDS for any chemical on the tier two form furnished
17-33 under Section 505.006 or for any chemical present at the facility.
17-34 (c) The board by rule may require certain categories of
17-35 facility operators under certain circumstances to implement the
17-36 National Fire Protection Association 704 identification system if
17-37 an equivalent system is not in use.
17-38 Sec. 505.009. COMPLAINTS AND INVESTIGATIONS. On
17-39 presentation of appropriate credentials, an officer or
17-40 representative of the director may enter a facility at reasonable
17-41 times to inspect and investigate complaints.
17-42 Sec. 505.010. ADMINISTRATIVE PENALTY. (a) The director may
17-43 assess an administrative penalty against an operator who violates
17-44 this chapter, board rules adopted under this chapter, or an order
17-45 issued under this chapter.
17-46 (b) If the department finds one or more violations of this
17-47 chapter, the director may issue a notice of violation to the
17-48 operator. The notice of violation shall specifically describe the
17-49 violation, refer to the applicable section or subsection of this
17-50 chapter, and state the amount of the penalty, if any, to be
17-51 assessed by the director.
17-52 (c) An operator who receives a notice of violation may
17-53 respond to the department in writing within 15 days of the date of
17-54 receipt of the notice of violation in one of the ways provided by
17-55 Subsection (d), (e), or (f).
17-56 (d) If the operator disputes the validity of the violation
17-57 and has reason to believe that the findings of the department were
17-58 based on inaccurate or incomplete information, the operator may
17-59 request an informal conference with representatives of the
17-60 department. The purpose of an informal conference is to permit the
17-61 operator to meet with department representatives to discuss the
17-62 basis of the violation and to provide information to the
17-63 department. The department shall schedule the informal conference.
17-64 A request for an informal conference made in bad faith is a
17-65 violation of this chapter.
17-66 (e) The operator may correct the violation and certify to
17-67 the department that the corrections have been made.
17-68 (f) The operator may request a hearing.
17-69 (g) Following an informal conference, the department shall
17-70 respond in writing to the operator, stating whether the department
18-1 intends to withdraw the notice of violation or pursue it. If the
18-2 department intends to pursue the notice of violation, the operator
18-3 may respond as provided by either Subsection (h) or (i) within 10
18-4 days of the date of receipt of the department's correspondence.
18-5 (h) The operator may correct the violation and certify to
18-6 the department that the corrections have been made.
18-7 (i) The operator may request a hearing.
18-8 (j) A request for an informal conference or a statement by
18-9 an operator that the operator is in compliance with the provisions
18-10 of this chapter does not waive the operator's right to a hearing.
18-11 (k) Except as provided in Subsection (l), the director may
18-12 not assess an administrative penalty for any violation that has
18-13 been corrected within 15 days of the date of the notice of
18-14 violation, the date of receipt of the department's response by the
18-15 employer, or 10 days after the date of receipt by the operator of
18-16 the department's response to the informal conference provided for
18-17 in Subsection (d), whichever is later.
18-18 (l) If a violation involves a failure to make a good faith
18-19 effort to comply with this chapter, the director may assess the
18-20 administrative penalty at any time.
18-21 (m) In determining the amount of the penalty, the director
18-22 shall consider:
18-23 (1) the operator's previous violations;
18-24 (2) the seriousness of the violation;
18-25 (3) any hazard to the health and safety of the public;
18-26 (4) the employer's demonstrated good faith;
18-27 (5) the duration of the violation; and
18-28 (6) other matters as justice may require.
18-29 (n) The penalty may not exceed $500 a day for each day a
18-30 violation continues, with a total not to exceed $5,000 for each
18-31 violation.
18-32 Sec. 505.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
18-33 (a) An administrative penalty may be assessed only after a
18-34 facility operator charged with a violation is given an opportunity
18-35 for a hearing.
18-36 (b) If a hearing is held, the director shall make findings
18-37 of fact and shall issue a written decision regarding the occurrence
18-38 of the violation and the amount of the penalty that may be
18-39 warranted.
18-40 (c) If the facility operator charged with the violation does
18-41 not request a hearing, the director may assess a penalty after
18-42 determining that a violation has occurred and the amount of the
18-43 penalty that may be warranted.
18-44 (d) After making a determination under this section that a
18-45 penalty is to be assessed against a facility operator, the director
18-46 shall issue an order requiring that the facility operator pay the
18-47 penalty.
18-48 (e) If a penalty is assessed on a complaint, the department
18-49 may allow the facility operator to make a grant to the local
18-50 emergency planning committee or a member organization instead of
18-51 paying the penalty. The department may specify that the operator
18-52 join the local emergency planning committee and attend all meetings
18-53 for one year or write an article, approved by the department,
18-54 concerning community right-to-know laws applicable in Texas for a
18-55 trade journal or other business publication.
18-56 (f) The director may consolidate a hearing held under this
18-57 section with another proceeding.
18-58 Sec. 505.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
18-59 REVIEW. (a) Not later than the 30th day after the date an order
18-60 finding that a violation has occurred is issued, the director shall
18-61 inform the facility operator against whom the order is issued of
18-62 the amount of the penalty for the violation.
18-63 (b) Except as provided by in Section 505.011(e), within 30
18-64 days after the date the director's order is final as provided by
18-65 Section 16(c), Administrative Procedure and Texas Register Act
18-66 (Article 6252-13a, Vernon's Texas Civil Statutes), the facility
18-67 operator shall:
18-68 (1) pay the amount of the penalty;
18-69 (2) pay the amount of the penalty and file a petition
18-70 for judicial review contesting the occurrence of the violation, the
19-1 amount of the penalty, or both the occurrence of the violation and
19-2 the amount of the penalty; or
19-3 (3) without paying the amount of the penalty, file a
19-4 petition for judicial review contesting the occurrence of the
19-5 violation, the amount of the penalty, or both the occurrence of the
19-6 violation and the amount of the penalty.
19-7 (c) Within the 30-day period, a facility operator who acts
19-8 under Subsection (b)(3) may:
19-9 (1) stay enforcement of the penalty by:
19-10 (A) paying the amount of the penalty to the
19-11 court for placement in an escrow account; or
19-12 (B) giving to the court a supersedeas bond that
19-13 is approved by the court for the amount of the penalty and that is
19-14 effective until all judicial review of the director's order is
19-15 final; or
19-16 (2) request the court to stay enforcement of the
19-17 penalty by:
19-18 (A) filing with the court a sworn affidavit of
19-19 the facility operator stating that the facility operator is
19-20 financially unable to pay the amount of the penalty and is
19-21 financially unable to give the supersedeas bond; and
19-22 (B) giving a copy of the affidavit to the
19-23 director by certified mail.
19-24 (d) If the director receives a copy of an affidavit under
19-25 Subsection (c)(2), the director may file with the court, within
19-26 five days after the date the copy is received, a contest to the
19-27 affidavit. The court shall hold a hearing on the facts alleged in
19-28 the affidavit as soon as practicable and shall stay the enforcement
19-29 of the penalty on finding that the alleged facts are true. The
19-30 facility operator who files an affidavit has the burden of proving
19-31 that the facility operator is financially unable to pay the amount
19-32 of the penalty and to give a supersedeas bond.
19-33 (e) If the facility operator does not pay the amount of the
19-34 penalty and the enforcement of the penalty is not stayed, the
19-35 director may refer the matter to the attorney general for
19-36 collection of the amount of the penalty.
19-37 (f) Judicial review of the order of the director:
19-38 (1) is instituted by filing a petition as provided by
19-39 Section 19, Administrative Procedure and Texas Register Act
19-40 (Article 6252-13a, Vernon's Texas Civil Statutes); and
19-41 (2) is under the substantial evidence rule.
19-42 (g) If the court sustains the occurrence of the violation,
19-43 the court may uphold or reduce the amount of the penalty and order
19-44 the facility operator to pay the full or reduced amount of the
19-45 penalty. If the court does not sustain the occurrence of the
19-46 violation, the court shall order that no penalty is owed.
19-47 (h) When the judgment of the court becomes final, the court
19-48 shall proceed under this subsection. If the facility operator paid
19-49 the amount of the penalty and if that amount is reduced or is not
19-50 upheld by the court, the court shall order that the appropriate
19-51 amount plus accrued interest be remitted to the facility operator.
19-52 The rate of the interest is the rate charged on loans to depository
19-53 institutions by the New York Federal Reserve Bank, and the interest
19-54 shall be paid for the period beginning on the date the penalty was
19-55 paid and ending on the date the penalty is remitted. If the
19-56 facility operator gave a supersedeas bond and if the amount of the
19-57 penalty is not upheld by the court, the court shall order the
19-58 release of the bond. If the facility operator gave a supersedeas
19-59 bond and if the amount of the penalty is reduced, the court shall
19-60 order the release of the bond after the facility operator pays the
19-61 amount.
19-62 (i) All proceedings under this section are subject to the
19-63 Administrative Procedure and Texas Register Act (Article 6252-13a,
19-64 Vernon's Texas Civil Statutes).
19-65 Sec. 505.013. CIVIL PENALTIES. (a) A person who knowingly
19-66 discloses false information or negligently fails to disclose a
19-67 hazard as required by this chapter is subject to a civil penalty of
19-68 not more than $5,000 for each violation.
19-69 (b) This section does not affect any other right of a person
19-70 to receive compensation under other law.
20-1 Sec. 505.014. CRIMINAL PENALTIES. (a) A person who
20-2 proximately causes an occupational disease or injury to an
20-3 individual by knowingly disclosing false information or knowingly
20-4 failing to disclose hazard information as required by this chapter
20-5 commits an offense punishable by a fine of not more than $25,000.
20-6 (b) This section does not affect any other right of a person
20-7 to receive compensation under other law.
20-8 Sec. 505.015. TRADE SECRETS. Facility operators must
20-9 substantiate trade secret claims to the administrator of the EPA in
20-10 accordance with EPCRA, Section 322.
20-11 Sec. 505.016. RULES; FEES. (a) The board may adopt rules
20-12 and administrative procedures reasonably necessary to carry out the
20-13 purposes of this chapter.
20-14 (b) The board may authorize the collection of annual fees
20-15 from facility operators for the filing of tier two forms required
20-16 by this chapter. Except as provided by Subsection (d), fees may be
20-17 used only to fund activities under this chapter. The fee for
20-18 facilities may not exceed:
20-19 (1) $100 for each required submission having no more
20-20 than 25 hazardous chemicals or hazardous chemical categories;
20-21 (2) $200 for each required submission having no more
20-22 than 50 hazardous chemicals or hazardous chemical categories;
20-23 (3) $300 for each required submission having no more
20-24 than 75 hazardous chemicals or hazardous chemical categories;
20-25 (4) $400 for each required submission having no more
20-26 than 100 hazardous chemicals or hazardous chemical categories; or
20-27 (5) $500 for each required submission having more than
20-28 100 hazardous chemicals or chemical categories.
20-29 (c) To minimize the fees, the board by rule shall provide
20-30 for consolidated filings of multiple tier two forms for facility
20-31 operators covered by Subsection (b) if each of the tier two forms
20-32 contains fewer than 25 items.
20-33 (d) The department may use up to 20 percent of the fees
20-34 collected under this section as grants to local emergency planning
20-35 committees to assist them to fulfill their responsibilities under
20-36 EPCRA. The department may use up to 15 percent of the fees
20-37 collected under this chapter and Chapter 506, or the amount of fees
20-38 paid by the state and its political subdivisions under Chapter 506,
20-39 whichever is greater, to administer Chapter 502.
20-40 CHAPTER 506. PUBLIC EMPLOYER COMMUNITY RIGHT-TO-KNOW ACT
20-41 Sec. 506.001. SHORT TITLE. This chapter may be cited as the
20-42 Public Employer Community Right-To-Know Act.
20-43 Sec. 506.002. FINDINGS; PURPOSE. (a) The legislature finds
20-44 that:
20-45 (1) the health and safety of persons living in this
20-46 state may be improved by providing access to information regarding
20-47 hazardous chemicals to which those persons may be exposed during
20-48 emergency situations or as a result of proximity to the manufacture
20-49 or use of those chemicals; and
20-50 (2) many facility operators in this state have
20-51 established suitable information programs for their communities and
20-52 that access to the information is required of most facility
20-53 operators under the federal Emergency Planning and Community
20-54 Right-To-Know Act (EPCRA).
20-55 (b) It is the intent and purpose of this chapter to ensure
20-56 that accessibility to information regarding hazardous chemical is
20-57 provided to:
20-58 (1) fire departments responsible for dealing with
20-59 chemical hazards during an emergency;
20-60 (2) local emergency planning committees and other
20-61 emergency planning organizations; and
20-62 (3) the director to make the information available to
20-63 the public through specific procedures.
20-64 Sec. 506.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
20-65 (a) In this chapter, a reference to a federal law or regulation
20-66 means a reference to the most current version of that law or
20-67 regulation.
20-68 (b) In this chapter, a reference to nomenclature systems
20-69 developed by the International Union of Pure and Applied Chemistry
20-70 (IUPAC) or the Chemical Abstracts Service (CAS), or to other
21-1 information, including information such as classification codes,
21-2 performance standards, systematic names, standards, and systems
21-3 described in publications sponsored by private technical or trade
21-4 organizations, means a reference to the most current version of the
21-5 publication.
21-6 Sec. 506.004. DEFINITIONS. In this chapter:
21-7 (1) "Article" means a manufactured item:
21-8 (A) that is formed to a specific shape or design
21-9 during manufacture;
21-10 (B) that has end-use functions dependent in
21-11 whole or in part on its shape or design during end use; and
21-12 (C) that does not release, or otherwise result
21-13 in exposure to, a hazardous chemical under normal conditions of
21-14 use.
21-15 (2) "Board" means the Texas Board of Health.
21-16 (3) "Chemical name" means:
21-17 (A) the scientific designation of a chemical in
21-18 accordance with the nomenclature system developed by the
21-19 International Union of Pure and Applied Chemistry (IUPAC) or the
21-20 Chemical Abstracts Service (CAS) rules of nomenclature; or
21-21 (B) a name that clearly identifies the chemical
21-22 for the purpose of conducting a hazard evaluation.
21-23 (4) "Common name" means a designation of
21-24 identification, such as a code name, code number, trade name, brand
21-25 name, or generic name, used to identify a chemical other than by
21-26 its chemical name.
21-27 (5) "Department" means the Texas Department of Health.
21-28 (6) "Director" means the director of the Texas
21-29 Department of Health.
21-30 (7) "EPA" means the United States Environmental
21-31 Protection Agency.
21-32 (8) "EPCRA" or "SARA Title III" means the federal
21-33 Emergency Planning and Community Right-To-Know Act, also known as
21-34 the Superfund Amendments and Reauthorization Act of 1986, Title
21-35 III, Pub. L. No. 99-499 et seq.
21-36 (9) "Extremely hazardous substance" means any
21-37 substance as defined in EPCRA, Section 302, or listed by the United
21-38 States Environmental Protection Agency in 40 CFR Part 355,
21-39 Appendices A and B.
21-40 (10) "Facility" means all buildings, equipment,
21-41 structures, and other stationary items that are located on a single
21-42 site or on contiguous or adjacent sites, that are owned or operated
21-43 by the same person, or by any person who controls, is controlled
21-44 by, or is under common control with that person and that is
21-45 operated by the state or a political subdivision of the state.
21-46 (11) "Facility operator" or "operator" means the
21-47 person who controls the day-to-day operations of the facility.
21-48 (12) "Fire chief" means the elected or paid
21-49 administrative head of a fire department.
21-50 (13) "Hazardous chemical" has the meaning given that
21-51 term by 29 CFR 1910.1200(c), except that the term does not include:
21-52 (A) any food, food additive, color additive,
21-53 drug, or cosmetic regulated by the Food and Drug Administration;
21-54 (B) any substance present as a solid in any
21-55 manufactured item to the extent exposure to the substance does not
21-56 occur under normal conditions of use;
21-57 (C) any substance to the extent that it is used
21-58 for personal, family, or household purposes, or is present in the
21-59 same form and concentration as a product packaged for distribution
21-60 and use by the public;
21-61 (D) any substance to the extent it is used in a
21-62 research laboratory or a hospital or other medical facility under
21-63 the direct supervision of a technically qualified individual; and
21-64 (E) any substance to the extent it is used in
21-65 routine agricultural operations or is a fertilizer held for sale by
21-66 a retailer to the ultimate consumer.
21-67 (14) "Health hazard" has the meaning given that term
21-68 by the OSHA standard (29 CFR 1910.1200(c)).
21-69 (15) "Identity" means any chemical or common name, or
21-70 alphabetical or numerical identification, that is indicated on the
22-1 material safety data sheet (MSDS) for the chemical. The identity
22-2 used must permit cross-references to be made among the facility
22-3 chemical list, the label, and the MSDS.
22-4 (16) "Label" means any written, printed, or graphic
22-5 material displayed on or affixed to a container of hazardous
22-6 chemicals.
22-7 (17) "Local emergency planning committee" means a
22-8 committee formed under the requirements of EPCRA, Section 301, and
22-9 recognized by the state emergency response commission for the
22-10 purposes of emergency planning and public information.
22-11 (18) "Material safety data sheet" or "MSDS" means a
22-12 document containing chemical hazard and safe handling information
22-13 that is prepared in accordance with the requirements of the OSHA
22-14 standard for that document.
22-15 (19) "OSHA standard" means the Hazard Communication
22-16 Standard issued by the Occupational Safety and Health
22-17 Administration and codified as 29 CFR Section 1910.1200.
22-18 (20) "Physical hazard" means a chemical for which
22-19 there is scientifically valid evidence that it is a combustible
22-20 liquid, a compressed gas, explosive, flammable, an organic
22-21 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
22-22 water-reactive in terms defined in the OSHA standard.
22-23 (21) "Public employer" means:
22-24 (A) the state and political subdivisions of the
22-25 state, including state, county, and municipal agencies;
22-26 (B) public schools, colleges, and universities;
22-27 (C) river authorities and publicly owned
22-28 utilities;
22-29 (D) volunteer emergency service organizations;
22-30 and
22-31 (E) other similar employers who are not covered
22-32 by the federal Occupational Safety and Health Act of 1970 (Pub. L.
22-33 No. 91-596), the Federal Coal Mine Health and Safety Act of 1969
22-34 (Pub. L. No. 91-173), or the Federal Mine Safety and Health
22-35 Amendments Act of 1977 (Pub. L. No. 95-164).
22-36 (22) "State emergency response commission" means the
22-37 state emergency management council or other committee appointed by
22-38 the governor in accordance with EPCRA.
22-39 (23) "Threshold planning quantity" means the minimum
22-40 quantity of an extremely hazardous substance for which a facility
22-41 owner or operator must participate in emergency planning, as
22-42 defined by the EPA pursuant to EPCRA, Section 302.
22-43 (24) "Tier two form" means:
22-44 (A) a form specified by the department under
22-45 Section 506.006 for listing hazardous chemicals as required by
22-46 EPCRA; or
22-47 (B) a form accepted by the EPA under EPCRA for
22-48 listing hazardous chemicals together with additional information
22-49 required by the department for administering its functions related
22-50 to EPCRA.
22-51 (25) "Workplace chemical list" means a list of
22-52 hazardous chemicals developed under Section 502.005(a).
22-53 Sec. 506.005. APPLICABILITY OF CHAPTER. (a) Public
22-54 employers shall comply with this chapter.
22-55 (b) This chapter does not apply to a hazardous chemical in a
22-56 sealed package that is received and subsequently sold or
22-57 transferred in that package if:
22-58 (1) the seal remains intact while the chemical is in
22-59 the facility;
22-60 (2) the chemical does not remain in the facility
22-61 longer than five working days; and
22-62 (3) the chemical is not an extremely hazardous
22-63 substance at or above the threshold planning quantity or 500
22-64 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
22-65 Appendices A and B.
22-66 (c) This chapter does not apply to:
22-67 (1) any hazardous waste as that term is defined by the
22-68 federal Solid Waste Disposal Act, as amended by the Resource
22-69 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
22-70 Section 6901 et seq.), when subject to regulations issued under
23-1 that Act by the EPA;
23-2 (2) tobacco or tobacco products;
23-3 (3) wood or wood products;
23-4 (4) articles;
23-5 (5) food, drugs, cosmetics, or alcoholic beverages in
23-6 a retail food sale establishment that are packaged for sale to
23-7 consumers;
23-8 (6) food, drugs, or cosmetics intended for personal
23-9 consumption by an employee while in the facility;
23-10 (7) any consumer product or hazardous substance, as
23-11 those terms are defined by the Consumer Product Safety Act (15
23-12 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
23-13 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
23-14 demonstrate it is used in the facility in the same manner as normal
23-15 consumer use and if the use results in a duration and frequency of
23-16 exposure that is not greater than exposures experienced by
23-17 consumers;
23-18 (8) any drug, as that term is defined by the Federal
23-19 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
23-20 it is in solid, final form for direct administration to the
23-21 patient, such as tablets or pills;
23-22 (9) the transportation, including storage incident to
23-23 that transportation, of any substance or chemical subject to this
23-24 chapter, including the transportation and distribution of natural
23-25 gas; and
23-26 (10) radioactive waste.
23-27 (d) The director shall develop an outreach program
23-28 concerning the public's ability to obtain information under this
23-29 chapter similar to the outreach program under Section 502.008.
23-30 Sec. 506.006. FACILITY CHEMICAL LIST. (a) For the purpose
23-31 of community right-to-know, a facility operator covered by this
23-32 chapter shall compile and maintain a tier two form that contains
23-33 information on hazardous chemicals present in the facility in
23-34 quantities that meet or exceed thresholds determined by the EPA in
23-35 40 CFR Part 370, or at any other reporting thresholds as determined
23-36 by board rule for certain highly toxic or extremely hazardous
23-37 substances.
23-38 (b) Multiple facilities may be reported on the same tier two
23-39 form, with appropriate facility identifiers, if the hazardous
23-40 chemicals or hazardous chemical categories present at the multiple
23-41 facilities are in the same ranges. In multiple facility
23-42 reporting, the reporting thresholds must be applied to each
23-43 facility rather than to the total quantities present at all
23-44 facilities.
23-45 (c) Each tier two form shall be filed annually with the
23-46 appropriate fee according to the procedures specified by board
23-47 rules. The facility operator shall furnish a copy of each tier two
23-48 form to the fire chief of the fire department having jurisdiction
23-49 over the facility and to the appropriate local emergency planning
23-50 committee.
23-51 (d) A facility operator shall file the tier two form with
23-52 the department not later than the 90th day after the date on which
23-53 the operator begins operation or has a reportable addition, at the
23-54 appropriate threshold, of a previously unreported hazardous
23-55 chemical or extremely hazardous substance, but a fee may not be
23-56 associated with filing this report. The operator shall furnish a
23-57 copy of each tier two form to the fire chief of the fire department
23-58 having jurisdiction over the facility and to the appropriate local
23-59 emergency planning committee.
23-60 (e) A facility operator shall file a material safety data
23-61 sheet with the department on the department's request.
23-62 (f) The department shall maintain records of the tier two
23-63 forms and other documents filed under this chapter or EPCRA for at
23-64 least 30 years.
23-65 (g) Documents filed under this chapter are subject to the
23-66 open records law, Chapter 424, Acts of the 63rd Legislature,
23-67 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
23-68 Statutes).
23-69 Sec. 506.007. DIRECT CITIZEN ACCESS TO INFORMATION.
23-70 (a) Except as otherwise provided by this section, a person may
24-1 request in writing copies of the facility's existing workplace
24-2 chemical list for community right-to-know purposes.
24-3 (b) Except as otherwise provided by this section, any
24-4 facility covered by this chapter shall furnish or mail, within 10
24-5 working days of the date of receipt of a request under Subsection
24-6 (a), either a copy of the facility's existing workplace chemical
24-7 list or a modified version of the most recent tier two form using a
24-8 500-pound threshold.
24-9 (c) Any facility that has received five requests under
24-10 Subsection (a) in a calendar month, four requests in a calendar
24-11 month for two or more months in a row, or more than 10 requests in
24-12 a year may elect to furnish the material to the department.
24-13 (d) Any facility electing to furnish the material to the
24-14 department under Subsection (c) may during that same filing period
24-15 inform persons making requests under Subsection (a) of the
24-16 availability of the information at the department and refer the
24-17 request to the department for that filing period. The notice to
24-18 persons making requests shall state the address of the department
24-19 and shall be mailed within seven days of the date of receipt of the
24-20 request, if by mail, and at the time of the request if in person.
24-21 Sec. 506.008. EMERGENCY PLANNING INFORMATION. (a) The fire
24-22 chief or the fire chief's representative, on request, may conduct
24-23 on-site inspections of the chemicals on the tier two form for the
24-24 sole purpose of planning fire department activities in case of an
24-25 emergency.
24-26 (b) A facility operator, on request, shall give the fire
24-27 chief or the local emergency planning committee such additional
24-28 information on types and amounts of hazardous chemicals present at
24-29 a facility as the requestor may need for emergency planning
24-30 purposes. A facility operator, on request, shall give the
24-31 director, the fire chief, or the local emergency planning committee
24-32 a copy of the MSDS for any chemical on the tier two form furnished
24-33 under Section 506.006 or for any chemical present at the facility.
24-34 (c) The board by rule may require certain categories of
24-35 facility operators under certain circumstances to implement the
24-36 National Fire Protection Association 704 identification system if
24-37 an equivalent system is not in use.
24-38 Sec. 506.009. COMPLAINTS AND INVESTIGATIONS. On
24-39 presentation of appropriate credentials, an officer or
24-40 representative of the director may enter a facility at reasonable
24-41 times to inspect and investigate complaints.
24-42 Sec. 506.010. ADMINISTRATIVE PENALTY. (a) The director may
24-43 assess an administrative penalty against an operator who violates
24-44 this chapter, board rules adopted under this chapter, or an order
24-45 issued under this chapter.
24-46 (b) If the department finds one or more violations of this
24-47 chapter, the director may issue a notice of violation to the
24-48 operator. The notice of violation shall specifically describe the
24-49 violation, refer to the applicable section or subsection of this
24-50 chapter, and state the amount of the penalty, if any, to be
24-51 assessed by the director.
24-52 (c) An operator who receives a notice of violation may
24-53 respond to the department in writing within 15 days of the date of
24-54 receipt of the notice of violation in one of the ways provided by
24-55 Subsection (d), (e), or (f).
24-56 (d) If the operator disputes the validity of the violation
24-57 and has reason to believe that the findings of the department were
24-58 based on inaccurate or incomplete information, the operator may
24-59 request an informal conference with representatives of the
24-60 department. The purpose of an informal conference is to permit the
24-61 operator to meet with department representatives to discuss the
24-62 basis of the violation and to provide information to the
24-63 department. The department shall schedule the informal conference.
24-64 A request for an informal conference made in bad faith is a
24-65 violation of this chapter.
24-66 (e) The operator may correct the violation and certify to
24-67 the department that the corrections have been made.
24-68 (f) The operator may request a hearing.
24-69 (g) Following an informal conference, the department shall
24-70 respond in writing to the operator, stating whether the department
25-1 intends to withdraw the notice of violation or pursue it. If the
25-2 department intends to pursue the notice of violation, the operator
25-3 may respond as provided by Subsection (h) or (i) within 10 days of
25-4 the date of receipt of the department's correspondence.
25-5 (h) The operator may correct the violation and certify to
25-6 the department that the corrections have been made.
25-7 (i) The operator may request a hearing.
25-8 (j) A request for an informal conference or a statement by
25-9 an operator that the operator is in compliance with the provisions
25-10 of this chapter does not waive the operator's right to a hearing.
25-11 (k) The director may not assess an administrative penalty
25-12 for any violation that has been corrected within 15 days of the
25-13 date of receipt of the notice of violation, the date of receipt of
25-14 the department's response by the employer, or 10 days after the
25-15 date of receipt by the operator of the department's response to the
25-16 informal conference provided for in Subsection (d), whichever is
25-17 later.
25-18 (l) In determining the amount of the penalty, the director
25-19 shall consider:
25-20 (1) the operator's previous violations;
25-21 (2) the seriousness of the violation;
25-22 (3) any hazard to the health and safety of the public;
25-23 (4) the employer's demonstrated good faith;
25-24 (5) the duration of the violation; and
25-25 (6) other matters as justice may require.
25-26 (m) The penalty may not exceed $50 a day for each day a
25-27 violation continues, with a total not to exceed $1,000 for each
25-28 violation.
25-29 Sec. 506.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
25-30 (a) An administrative penalty may be assessed only after a
25-31 facility operator charged with a violation is given an opportunity
25-32 for a hearing.
25-33 (b) If a hearing is held, the director shall make findings
25-34 of fact and shall issue a written decision regarding the occurrence
25-35 of the violation and the amount of the penalty that may be
25-36 warranted.
25-37 (c) If the facility operator charged with the violation does
25-38 not request a hearing, the director may assess a penalty after
25-39 determining that a violation has occurred and the amount of the
25-40 penalty that may be warranted.
25-41 (d) After making a determination under this section that a
25-42 penalty is to be assessed against a facility operator, the director
25-43 shall issue an order requiring that the facility operator pay the
25-44 penalty.
25-45 (e) If a penalty is assessed on a complaint, the department
25-46 may allow the facility operator to make a grant to the local
25-47 emergency planning committee or a member organization instead of
25-48 paying the penalty. The department may specify that the operator
25-49 join the local emergency planning committee and attend all meetings
25-50 for one year or write an article, approved by the department,
25-51 concerning community right-to-know laws applicable in Texas for a
25-52 trade journal or other business publication.
25-53 (f) The director may consolidate a hearing held under this
25-54 section with another proceeding.
25-55 Sec. 506.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
25-56 REVIEW. (a) Not later than the 30th day after the date an order
25-57 finding that a violation has occurred is issued, the director shall
25-58 inform the facility operator against whom the order is issued of
25-59 the amount of the penalty for the violation.
25-60 (b) Except as provided in Section 506.011(e), not later than
25-61 the 30th day after the date on which a decision or order charging a
25-62 facility operator with a penalty is final, the facility operator
25-63 shall pay the penalty in full, unless the facility operator seeks
25-64 judicial review of the amount of the penalty, the fact of the
25-65 violation, or both. The board may by rule provide for appeals by
25-66 the state and political subdivisions of the state.
25-67 Sec. 506.013. REFUND OF ADMINISTRATIVE PENALTY. Not later
25-68 than the 30th day after the date of a judicial determination that
25-69 an administrative penalty against a facility operator should be
25-70 reduced or not assessed, the director shall remit to the facility
26-1 operator the appropriate amount of any penalty payment already paid
26-2 plus accrued interest.
26-3 Sec. 506.014. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
26-4 GENERAL. The attorney general at the request of the director may
26-5 bring a civil action to recover an administrative penalty under
26-6 this chapter.
26-7 Sec. 506.015. CIVIL PENALTIES. (a) A person who knowingly
26-8 discloses false information or negligently fails to disclose a
26-9 hazard as required by this chapter is subject to a civil penalty of
26-10 not more than $5,000 for each violation.
26-11 (b) This section does not affect any other right of a person
26-12 to receive compensation under other law.
26-13 Sec. 506.016. CRIMINAL PENALTIES. (a) A person who
26-14 proximately causes an occupational disease or injury to an
26-15 individual by knowingly disclosing false information or knowingly
26-16 failing to disclose hazard information as required by this chapter
26-17 commits an offense punishable by a fine of not more than $25,000.
26-18 (b) This section does not affect any other right of a person
26-19 to receive compensation under other law.
26-20 Sec. 506.017. RULES; FEES. (a) The board may adopt rules
26-21 and administrative procedures reasonably necessary to carry out the
26-22 purposes of this chapter.
26-23 (b) The board may authorize the collection of annual fees
26-24 from facility operators for the filing of tier two forms required
26-25 by this chapter. The fee may not exceed:
26-26 (1) $50 for each required submission having no more
26-27 than 75 hazardous chemicals or hazardous chemical categories; or
26-28 (2) $100 for each required submission having more than
26-29 75 hazardous chemicals or chemical categories.
26-30 (c) To minimize the fees, the board by rule shall provide
26-31 for consolidated filings of multiple tier two forms for facility
26-32 operators covered by Subsection (b) if each of the tier two forms
26-33 contains fewer than 25 items.
26-34 (d) The department may use up to 15 percent of the fees
26-35 collected under Chapter 505 and this chapter, or the amount of fees
26-36 paid by the state and its political subdivisions under this
26-37 chapter, whichever is greater, to administer Chapter 502.
26-38 CHAPTER 507. NONMANUFACTURING FACILITIES COMMUNITY
26-39 RIGHT-TO-KNOW ACT
26-40 Sec. 507.001. SHORT TITLE. This chapter may be cited as the
26-41 Nonmanufacturing Facilities Community Right-To-Know Act.
26-42 Sec. 507.002. FINDINGS; PURPOSE. (a) The legislature finds
26-43 that:
26-44 (1) the health and safety of persons living in this
26-45 state may be improved by providing access to information regarding
26-46 hazardous chemicals to which those persons may be exposed during
26-47 emergency situations or as a result of proximity to the use of
26-48 those chemicals; and
26-49 (2) many facility operators in this state have
26-50 established suitable information programs for their communities and
26-51 that access to the information is required of most facility
26-52 operators under the federal Emergency Planning and Community
26-53 Right-To-Know Act (EPCRA).
26-54 (b) It is the intent and purpose of this chapter to ensure
26-55 that accessibility to information regarding hazardous chemicals is
26-56 provided to:
26-57 (1) fire departments responsible for dealing with
26-58 chemical hazards during an emergency;
26-59 (2) local emergency planning committees and other
26-60 emergency planning organizations; and
26-61 (3) the director to make the information available to
26-62 the public through specific procedures.
26-63 Sec. 507.003. FEDERAL LAWS AND REGULATIONS. In this
26-64 chapter, a reference to a federal law or regulation means a
26-65 reference to the most current version of that law or regulation.
26-66 Sec. 507.004. DEFINITIONS. In this chapter:
26-67 (1) "Article" means a manufactured item:
26-68 (A) that is formed to a specific shape or design
26-69 during manufacture;
26-70 (B) that has end-use functions dependent in
27-1 whole or in part on its shape or design during end use; and
27-2 (C) that does not release, or otherwise result
27-3 in exposure to, a hazardous chemical under normal conditions of
27-4 use.
27-5 (2) "Board" means the Texas Board of Health.
27-6 (3) "Chemical name" means:
27-7 (A) the scientific designation of a chemical in
27-8 accordance with the nomenclature system developed by the
27-9 International Union of Pure and Applied Chemistry (IUPAC) or the
27-10 Chemical Abstracts Service (CAS) rules of nomenclature; or
27-11 (B) a name that clearly identifies the chemical
27-12 for the purpose of conducting a hazard evaluation.
27-13 (4) "Common name" means a designation of
27-14 identification, such as a code name, code number, trade name, brand
27-15 name, or generic name, used to identify a chemical other than by
27-16 its chemical name.
27-17 (5) "Department" means the Texas Department of Health.
27-18 (6) "Director" means the director of the Texas
27-19 Department of Health.
27-20 (7) "EPA" means the United States Environmental
27-21 Protection Agency.
27-22 (8) "EPCRA" or "SARA Title III" means the federal
27-23 Emergency Planning and Community Right-To-Know Act, also known as
27-24 the Superfund Amendments and Reauthorization Act of 1986, Title
27-25 III, Pub. L. No. 99-499 et seq.
27-26 (9) "Extremely hazardous substance" means any
27-27 substance as defined in EPCRA, Section 302, or listed by the United
27-28 States Environmental Protection Agency in 40 CFR Part 355,
27-29 Appendices A and B.
27-30 (10) "Facility" means all buildings, equipment,
27-31 structures, and other stationary items that are located on a single
27-32 site or on contiguous or adjacent sites and that are owned or
27-33 operated by the same person or by any person who controls, is
27-34 controlled by, or is under common control with that person. The
27-35 term does not include a facility subject to Chapter 505 or 506.
27-36 (11) "Facility operator" or "operator" means the
27-37 person who controls the day-to-day operations of the facility.
27-38 (12) "Fire chief" means the elected or paid
27-39 administrative head of a fire department.
27-40 (13) "Hazardous chemical" has the meaning given that
27-41 term by 29 CFR 1910.1200(c), except that the term does not include:
27-42 (A) any food, food additive, color additive,
27-43 drug, or cosmetic regulated by the Food and Drug Administration;
27-44 (B) any substance present as a solid in any
27-45 manufactured item to the extent exposure to the substance does not
27-46 occur under normal conditions of use;
27-47 (C) any substance to the extent that it is used
27-48 for personal, family, or household purposes, or is present in the
27-49 same form and concentration as a product packaged for distribution
27-50 and use by the general public;
27-51 (D) any substance to the extent it is used in a
27-52 research laboratory or a hospital or other medical facility under
27-53 the direct supervision of a technically qualified individual; and
27-54 (E) any substance to the extent it is used in
27-55 routine agricultural operations or is a fertilizer held for sale by
27-56 a retailer to the ultimate consumer.
27-57 (14) "Health hazard" has the meaning given that term
27-58 by the OSHA standard (29 CFR 1910.1200(c)).
27-59 (15) "Identity" means a chemical or common name, or
27-60 alphabetical or numerical identification, that is indicated on the
27-61 material safety data sheet (MSDS) for the chemical. The identity
27-62 used must permit cross-references to be made among the facility
27-63 chemical list, the label, and the MSDS.
27-64 (16) "Label" means any written, printed, or graphic
27-65 material displayed on or affixed to a container of hazardous
27-66 chemicals.
27-67 (17) "Local emergency planning committee" means a
27-68 committee formed under the requirements of EPCRA, Section 301, and
27-69 recognized by the state emergency response commission for the
27-70 purposes of emergency planning and public information.
28-1 (18) "Material safety data sheet" or "MSDS" means a
28-2 document containing chemical hazard and safe handling information
28-3 that is prepared in accordance with the requirements of the OSHA
28-4 standard for that document.
28-5 (19) "OSHA standard" means the Hazard Communication
28-6 Standard issued by the Occupational Safety and Health
28-7 Administration and codified as 29 CFR Section 1910.1200.
28-8 (20) "Physical hazard" means a chemical for which
28-9 there is scientifically valid evidence that it is a combustible
28-10 liquid, a compressed gas, explosive, flammable, an organic
28-11 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
28-12 water-reactive in terms defined in the OSHA standard.
28-13 (21) "State emergency response commission" means the
28-14 state emergency management council or other committee appointed by
28-15 the governor in accordance with EPCRA.
28-16 (22) "Threshold planning quantity" means the minimum
28-17 quantity of an extremely hazardous substance for which a facility
28-18 owner or operator must participate in emergency planning, as
28-19 defined by the EPA pursuant to EPCRA, Section 302.
28-20 (23) "Tier two form" means:
28-21 (A) a form specified by the department under
28-22 Section 507.006 for listing hazardous chemicals as required by
28-23 EPCRA; or
28-24 (B) a form accepted by the EPA under EPCRA for
28-25 listing hazardous chemicals together with additional information
28-26 required by the department for administering its functions related
28-27 to EPCRA.
28-28 Sec. 507.005. APPLICABILITY OF CHAPTER. (a) Facility
28-29 operators who are not subject to Chapter 505 or 506 shall comply
28-30 with this chapter.
28-31 (b) This chapter does not apply to a hazardous chemical in a
28-32 sealed package that is received and subsequently sold or
28-33 transferred in that package if:
28-34 (1) the seal remains intact while the chemical is in
28-35 the facility;
28-36 (2) the chemical does not remain in the facility
28-37 longer than five working days; and
28-38 (3) the chemical is not an extremely hazardous
28-39 substance at or above the threshold planning quantity or 500
28-40 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
28-41 Appendices A and B.
28-42 (c) This chapter does not apply to:
28-43 (1) any hazardous waste as that term is defined by the
28-44 federal Solid Waste Disposal Act, as amended by the Resource
28-45 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
28-46 Section 6901 et seq.), when subject to regulations issued under
28-47 that Act by the EPA;
28-48 (2) tobacco or tobacco products;
28-49 (3) wood or wood products;
28-50 (4) articles;
28-51 (5) food, drugs, cosmetics, or alcoholic beverages in
28-52 a retail food sale establishment that are packaged for sale to
28-53 consumers;
28-54 (6) food, drugs, or cosmetics intended for personal
28-55 consumption by an employee while in the facility;
28-56 (7) any consumer product or hazardous substance, as
28-57 those terms are defined by the Consumer Product Safety Act (15
28-58 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
28-59 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
28-60 demonstrate it is used in the facility in the same manner as normal
28-61 consumer use and if the use results in a duration and frequency of
28-62 exposure that is not greater than exposures experienced by
28-63 consumers;
28-64 (8) any drug, as that term is defined by the Federal
28-65 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
28-66 it is in solid, final form for direct administration to the
28-67 patient, such as tablets or pills;
28-68 (9) the transportation, including storage incident to
28-69 that transportation, of any substance or chemical subject to this
28-70 chapter, including the transportation and distribution of natural
29-1 gas; and
29-2 (10) radioactive waste.
29-3 (d) The director shall develop an outreach program
29-4 concerning the public's ability to obtain information under this
29-5 chapter similar to the outreach program under Section 502.008.
29-6 Sec. 507.006. FACILITY CHEMICAL LIST. (a) For the purpose
29-7 of community right-to-know, a facility operator covered by this
29-8 chapter shall compile and maintain a tier two form that contains
29-9 information on hazardous chemicals present in the facility in
29-10 quantities that meet or exceed thresholds determined by the EPA in
29-11 40 CFR Part 370, or at any other reporting thresholds as determined
29-12 by board rule for certain highly toxic or extremely hazardous
29-13 substances.
29-14 (b) Multiple facilities may be reported on the same tier two
29-15 form, with appropriate facility identifiers, if the hazardous
29-16 chemicals or hazardous chemical categories present at the multiple
29-17 facilities are in the same ranges. In multiple facility reporting,
29-18 the reporting thresholds must be applied to each facility rather
29-19 than to the total quantities present at all facilities.
29-20 (c) Each tier two form shall be filed annually with the
29-21 appropriate fee according to the procedures specified by board
29-22 rules. The facility operator shall furnish a copy of each tier two
29-23 form to the fire chief of the fire department having jurisdiction
29-24 over the facility and to the appropriate local emergency planning
29-25 committee.
29-26 (d) The tier two form shall be used to comply with the
29-27 updating requirements in EPCRA, Section 311, but a fee may not be
29-28 associated with filing the report.
29-29 (e) A facility operator shall file the tier two form with
29-30 the department not later than the 90th day after the date on which
29-31 the operator begins operation or has a reportable addition, at the
29-32 appropriate threshold, of a previously unreported hazardous
29-33 chemical or extremely hazardous substance. The operator shall
29-34 furnish a copy of each tier two form to the fire chief of the fire
29-35 department having jurisdiction over the facility and to the
29-36 appropriate local emergency planning committee.
29-37 (f) A facility operator shall file a material safety data
29-38 sheet with the department on the department's request.
29-39 (g) The department shall maintain records of the tier two
29-40 forms and other documents filed under this chapter or EPCRA for at
29-41 least 30 years.
29-42 (h) Except as provided by Section 507.012, documents filed
29-43 under this chapter are subject to the open records law, Chapter
29-44 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
29-45 6252-17a, Vernon's Texas Civil Statutes).
29-46 Sec. 507.007. EMERGENCY PLANNING INFORMATION. (a) The fire
29-47 chief or the fire chief's representative, on request, may conduct
29-48 on-site inspections of the chemicals on the tier two form for the
29-49 sole purpose of planning fire department activities in case of an
29-50 emergency.
29-51 (b) A facility operator, on request, shall give the fire
29-52 chief or the local emergency planning committee such additional
29-53 information on types and amounts of hazardous chemicals present at
29-54 a facility as the requestor may need for emergency planning
29-55 purposes. A facility operator, on request, shall give the
29-56 director, the fire chief, or the local emergency planning committee
29-57 a copy of the MSDS for any chemical on the tier two form furnished
29-58 under Section 507.006 or for any chemical present at the facility.
29-59 (c) The board by rule may require certain categories of
29-60 facility operators under certain circumstances to implement the
29-61 National Fire Protection Association 704 identification system if
29-62 an equivalent system is not in use.
29-63 Sec. 507.008. COMPLAINTS AND INVESTIGATIONS. On
29-64 presentation of appropriate credentials, an officer or
29-65 representative of the director may enter a facility at reasonable
29-66 times to inspect and investigate complaints.
29-67 Sec. 507.009. ADMINISTRATIVE PENALTY. (a) The director may
29-68 assess an administrative penalty against a facility operator who
29-69 violates this chapter, board rules adopted under this chapter, or
29-70 an order issued under this chapter.
30-1 (b) If the department finds one or more violations of this
30-2 chapter, the director may issue a notice of violation to the
30-3 operator. The notice of violation shall specifically describe the
30-4 violation, refer to the applicable section or subsection of this
30-5 chapter, and state the amount of the penalty, if any, to be
30-6 assessed by the director.
30-7 (c) An operator who receives a notice of violation may
30-8 respond to the department in writing within 15 days of the date of
30-9 receipt of the notice of violation in one of the ways provided by
30-10 Subsection (d), (e), or (f).
30-11 (d) If the operator disputes the validity of the violation
30-12 and has reason to believe that the findings of the department were
30-13 based on inaccurate or incomplete information, the operator may
30-14 request an informal conference with representatives of the
30-15 department. The purpose of an informal conference is to permit the
30-16 operator to meet with department representatives to discuss the
30-17 basis of the violation and to provide information to the
30-18 department. The department shall schedule the informal conference.
30-19 A request for an informal conference made in bad faith is a
30-20 violation of this chapter.
30-21 (e) The operator may correct the violation and certify to
30-22 the department that the corrections have been made.
30-23 (f) The operator may request a hearing.
30-24 (g) Following an informal conference, the department shall
30-25 respond in writing to the operator, stating whether the department
30-26 intends to withdraw the notice of violation or pursue it. If the
30-27 department intends to pursue the notice of violation, the operator
30-28 may respond as provided by either Subsection (h) or (i) within 10
30-29 days of the date of receipt of the department's correspondence.
30-30 (h) The operator may correct the violation and certify to
30-31 the department that the corrections have been made.
30-32 (i) The operator may request a hearing.
30-33 (j) A request for an informal conference or a statement by
30-34 an operator that the operator is in compliance with the provisions
30-35 of this chapter does not waive the operator's right to a hearing.
30-36 (k) Except as provided in Subsection (l), the director may
30-37 not assess an administrative penalty for any violation that has
30-38 been corrected within 15 days of the date of receipt of the notice
30-39 of violation, the date of receipt of the department's response by
30-40 the employer, or 10 days after the date of receipt by the operator
30-41 of the department's response to the informal conference provided
30-42 for in Subsection (d), whichever is later.
30-43 (l) If a violation involves a failure to make a good-faith
30-44 effort to comply with this chapter, the director may assess the
30-45 administrative penalty at any time.
30-46 (m) In determining the amount of the penalty, the director
30-47 shall consider:
30-48 (1) the operator's previous violations;
30-49 (2) the seriousness of the violation;
30-50 (3) any hazard to the health and safety of the public;
30-51 (4) the operator's demonstrated good faith;
30-52 (5) the duration of the violation; and
30-53 (6) other matters as justice may require.
30-54 (n) The penalty may not exceed $50 for each day a violation
30-55 continues, with a total not to exceed $1,000 for each violation.
30-56 Sec. 507.010. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
30-57 (a) An administrative penalty may be assessed only after a
30-58 facility operator charged with a violation is given an opportunity
30-59 for a hearing.
30-60 (b) If a hearing is held, the director shall make findings
30-61 of fact and shall issue a written decision regarding the occurrence
30-62 of the violation and the amount of the penalty that may be
30-63 warranted.
30-64 (c) If the facility operator charged with the violation does
30-65 not request a hearing, the director may assess a penalty after
30-66 determining that a violation has occurred and the amount of the
30-67 penalty that may be warranted.
30-68 (d) After making a determination under this section that a
30-69 penalty is to be assessed against a facility operator, the director
30-70 shall issue an order requiring that the facility operator pay the
31-1 penalty.
31-2 (e) If a penalty is assessed on a complaint, the department
31-3 may allow the facility operator to make a grant to the local
31-4 emergency planning committee or a member organization instead of
31-5 paying the penalty. The department may specify that the operator
31-6 join the local emergency planning committee and attend all meetings
31-7 for one year or write an article, approved by the department,
31-8 concerning community right-to-know laws applicable in Texas for a
31-9 trade journal or other business publication.
31-10 (f) The director may consolidate a hearing held under this
31-11 section with another proceeding.
31-12 Sec. 507.011. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
31-13 REVIEW. (a) Not later than the 30th day after the date an order
31-14 finding that a violation has occurred is issued, the director shall
31-15 inform the facility operator against whom the order is issued of
31-16 the amount of the penalty for the violation.
31-17 (b) Except as provided by Section 507.010(e), within 30 days
31-18 after the date the director's order is final as provided by Section
31-19 16(c), Administrative Procedure and Texas Register Act (Article
31-20 6252-13a, Vernon's Texas Civil Statutes), the facility operator
31-21 shall:
31-22 (1) pay the amount of the penalty;
31-23 (2) pay the amount of the penalty and file a petition
31-24 for judicial review contesting the occurrence of the violation, the
31-25 amount of the penalty, or both the occurrence of the violation and
31-26 the amount of the penalty; or
31-27 (3) without paying the amount of the penalty, file a
31-28 petition for judicial review contesting the occurrence of the
31-29 violation, the amount of the penalty, or both the occurrence of the
31-30 violation and the amount of the penalty.
31-31 (c) Within the 30-day period, a facility operator who acts
31-32 under Subsection (b)(3) may:
31-33 (1) stay enforcement of the penalty by:
31-34 (A) paying the amount of the penalty to the
31-35 court for placement in an escrow account; or
31-36 (B) giving to the court a supersedeas bond that
31-37 is approved by the court for the amount of the penalty and that is
31-38 effective until all judicial review of the director's order is
31-39 final; or
31-40 (2) request the court to stay enforcement of the
31-41 penalty by:
31-42 (A) filing with the court a sworn affidavit of
31-43 the facility operator stating that the facility operator is
31-44 financially unable to pay the amount of the penalty and is
31-45 financially unable to give the supersedeas bond; and
31-46 (B) giving a copy of the affidavit to the
31-47 executive director by certified mail.
31-48 (d) If the director receives a copy of an affidavit under
31-49 Subsection (c)(2), the director may file with the court, within
31-50 five days after the date the copy is received, a contest to the
31-51 affidavit. The court shall hold a hearing on the facts alleged in
31-52 the affidavit as soon as practicable and shall stay the enforcement
31-53 of the penalty on finding that the alleged facts are true. The
31-54 facility operator who files an affidavit has the burden of proving
31-55 that the facility operator is financially unable to pay the amount
31-56 of the penalty and to give a supersedeas bond.
31-57 (e) If the facility operator does not pay the amount of the
31-58 penalty and the enforcement of the penalty is not stayed, the
31-59 director may refer the matter to the attorney general for
31-60 collection of the amount of the penalty.
31-61 (f) Judicial review of the order of the director:
31-62 (1) is instituted by filing a petition as provided by
31-63 Section 19, Administrative Procedure and Texas Register Act
31-64 (Article 6252-13a, Vernon's Texas Civil Statutes); and
31-65 (2) is under the substantial evidence rule.
31-66 (g) If the court sustains the occurrence of the violation,
31-67 the court may uphold or reduce the amount of the penalty and order
31-68 the facility operator to pay the full or reduced amount of the
31-69 penalty. If the court does not sustain the occurrence of the
31-70 violation, the court shall order that no penalty is owed.
32-1 (h) When the judgment of the court becomes final, the court
32-2 shall proceed under this subsection. If the facility operator paid
32-3 the amount of the penalty and if that amount is reduced or is not
32-4 upheld by the court, the court shall order that the appropriate
32-5 amount plus accrued interest be remitted to the facility operator.
32-6 The rate of the interest is the rate charged on loans to depository
32-7 institutions by the New York Federal Reserve Bank, and the interest
32-8 shall be paid for the period beginning on the date the penalty was
32-9 paid and ending on the date the penalty is remitted. If the
32-10 facility operator gave a supersedeas bond and if the amount of the
32-11 penalty is not upheld by the court, the court shall order the
32-12 release of the bond. If the facility operator gave a supersedeas
32-13 bond and if the amount of the penalty is reduced, the court shall
32-14 order the release of the bond after the facility operator pays the
32-15 amount.
32-16 (i) All proceedings under this section are subject to the
32-17 Administrative Procedure and Texas Register Act (Article 6252-13a,
32-18 Vernon's Texas Civil Statutes).
32-19 Sec. 507.012. TRADE SECRETS. Facility operators must
32-20 substantiate trade secret claims to the administrator of the EPA in
32-21 accordance with EPCRA, Section 322.
32-22 Sec. 507.013. RULES; FEES. (a) The board may adopt rules
32-23 and administrative procedures reasonably necessary to carry out the
32-24 purposes of this chapter.
32-25 (b) The board may authorize the collection of annual fees
32-26 from facility operators for the filing of tier two forms required
32-27 by this chapter. Except as provided by Subsection (d), fees may be
32-28 used only to fund activities under this chapter. The fee may not
32-29 exceed:
32-30 (1) $50 for each required submission having no more
32-31 than 75 hazardous chemicals or hazardous chemical categories; or
32-32 (2) $100 for each required submission having more than
32-33 75 hazardous chemicals or chemical categories.
32-34 (c) To minimize the fees, the board by rule shall provide
32-35 for consolidated filings of multiple tier two forms for facility
32-36 operators covered by Subsection (b) if each of the tier two forms
32-37 contains fewer than 25 items.
32-38 (d) The department may use up to 20 percent of the fees
32-39 collected under this section as grants to local emergency planning
32-40 committees to assist them to fulfill their responsibilities under
32-41 EPCRA.
32-42 SECTION 3. This Act takes effect September 1, 1993.
32-43 SECTION 4. The importance of this legislation and the
32-44 crowded condition of the calendars in both houses create an
32-45 emergency and an imperative public necessity that the
32-46 constitutional rule requiring bills to be read on three several
32-47 days in each house be suspended, and this rule is hereby suspended.
32-48 * * * * *
32-49 Austin,
32-50 Texas
32-51 May 20, 1993
32-52 Hon. Bob Bullock
32-53 President of the Senate
32-54 Sir:
32-55 We, your Committee on Natural Resources to which was referred H.B.
32-56 No. 1431, have had the same under consideration, and I am
32-57 instructed to report it back to the Senate with the recommendation
32-58 that it do pass and be printed.
32-59 Sims,
32-60 Chairman
32-61 * * * * *
32-62 WITNESSES
32-63 FOR AGAINST ON
32-64 ___________________________________________________________________
32-65 Name: Amy Gilliland x
32-66 Representing: TIPRO
32-67 City: Austin
32-68 -------------------------------------------------------------------
32-69 Name: Jon K. Fisher x
32-70 Representing: Texas Chemical Council
33-1 City: Austin
33-2 -------------------------------------------------------------------
33-3 Name: Dee Simpson x
33-4 Representing: American Fed. of State, Count
33-5 City: Austin
33-6 -------------------------------------------------------------------
33-7 Name: Paula McKinney x
33-8 Representing: Tx Dept. of Health
33-9 City: Austin
33-10 -------------------------------------------------------------------
33-11 Name: Charles Maddox x
33-12 Representing: Tx Dept of Health
33-13 City: Austin
33-14 -------------------------------------------------------------------
33-15 Name: Allan Dees x
33-16 Representing: Texaco E & P
33-17 City: Midland
33-18 -------------------------------------------------------------------
33-19 Name: Steve Perry x
33-20 Representing: Texaco
33-21 City: Austin
33-22 -------------------------------------------------------------------
33-23 Name: Ben Sebree x
33-24 Representing: Tx Mid-Continent Oil and Gas
33-25 City: Austin
33-26 -------------------------------------------------------------------