CHAPTER 505. MANUFACTURING FACILITY COMMUNITY RIGHT-TO-KNOW ACT
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE D. HAZARDOUS SUBSTANCES
CHAPTER 505. MANUFACTURING FACILITY COMMUNITY RIGHT-TO-KNOW ACT
Sec. 505.001. SHORT TITLE. This chapter may be cited as the
Manufacturing Facility Community Right-To-Know Act.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.002. FINDINGS; PURPOSE. (a) The legislature finds
that:
(1) the health and safety of persons living in this state may be
improved by providing access to information regarding hazardous
chemicals to which those persons may be exposed during emergency
situations or as a result of proximity to the manufacture or use
of those chemicals; and
(2) many facility operators in this state have established
suitable information programs for their communities and that
access to the information is required of most facility operators
under the federal Emergency Planning and Community Right-To-Know
Act (EPCRA).
(b) It is the intent and purpose of this chapter to ensure that
accessibility to information regarding hazardous chemicals is
provided to:
(1) fire departments responsible for dealing with chemical
hazards during an emergency;
(2) local emergency planning committees and other emergency
planning organizations; and
(3) the director to make the information available to the public
through specific procedures.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
(a) In this chapter, a reference to a federal law or regulation
means a reference to the most current version of that law or
regulation.
(b) In this chapter, a reference to Standard Industrial
Classification (SIC), to nomenclature systems developed by the
International Union of Pure and Applied Chemistry (IUPAC) or the
Chemical Abstracts Service (CAS), or to other information,
including information such as classification codes, performance
standards, systematic names, standards, and systems described in
publications sponsored by private technical or trade
organizations, means a reference to the most current version of
the publication.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.004. DEFINITIONS. In this chapter:
(1) "Article" means a manufactured item:
(A) that is formed to a specific shape or design during
manufacture;
(B) that has end-use functions dependent in whole or in part on
its shape or design during end use; and
(C) that does not release, or otherwise result in exposure to, a
hazardous chemical under normal conditions of use.
(2) "Board" means the Texas Board of Health.
(3) "Chemical name" means:
(A) the scientific designation of a chemical in accordance with
the nomenclature system developed by the International Union of
Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts
Service (CAS) rules of nomenclature; or
(B) a name that clearly identifies the chemical for the purpose
of conducting a hazard evaluation.
(4) "Common name" means a designation of identification, such as
a code name, code number, trade name, brand name, or generic
name, used to identify a chemical other than by its chemical
name.
(5) "Department" means the Texas Department of Health.
(6) "Director" means the director of the Texas Department of
Health.
(7) "EPA" means the United States Environmental Protection
Agency.
(8) "EPCRA" or "SARA Title III" means the federal Emergency
Planning and Community Right-To-Know Act, also known as the
Superfund Amendments and Reauthorization Act of 1986, Title III,
Pub. L. No. 99-499 et seq.
(9) "Extremely hazardous substance" means any substance as
defined in EPCRA, Section 302, or listed by the United States
Environmental Protection Agency in 40 CFR Part 355, Appendices A
and B.
(10) "Facility" means all buildings, equipment, structures, and
other stationary items that are located on a single site or on
contiguous or adjacent sites, that are owned or operated by the
same person, or by any person who controls, is controlled by, or
is under common control with that person, and that is in Standard
Industrial Codes (SIC) 20-39.
(11) "Facility operator" or "operator" means the person who
controls the day-to-day operations of the facility.
(12) "Fire chief" means the elected or paid administrative head
of a fire department.
(13) "Hazardous chemical" has the meaning given that term by 29
CFR 1910.1200(c), except that the term does not include:
(A) any food, food additive, color additive, drug, or cosmetic
regulated by the Food and Drug Administration;
(B) any substance present as a solid in any manufactured item to
the extent exposure to the substance does not occur under normal
conditions of use;
(C) any substance to the extent it is used for personal, family,
or household purposes, or is present in the same form and
concentration as a product packaged for distribution and use by
the public;
(D) any substance to the extent it is used in a research
laboratory or a hospital or other medical facility under the
direct supervision of a technically qualified individual; and
(E) any substance to the extent it is used in routine
agricultural operations or is a fertilizer held for sale by a
retailer to the ultimate consumer.
(14) "Health hazard" has the meaning given that term by the OSHA
standard (29 CFR 1910.1200(c)).
(15) "Identity" means any chemical or common name, or
alphabetical or numerical identification, that is indicated on
the material safety data sheet (MSDS) for the chemical. The
identity used must permit cross-references to be made among the
facility chemical list, the label, and the MSDS.
(16) "Label" means any written, printed, or graphic material
displayed on or affixed to a container of hazardous chemicals.
(17) "Local emergency planning committee" means a committee
formed under the requirements of EPCRA, Section 301, and
recognized by the state emergency response commission for the
purposes of emergency planning and public information.
(18) "Material safety data sheet" or "MSDS" means a document
containing chemical hazard and safe handling information that is
prepared in accordance with the requirements of the OSHA standard
for that document.
(19) "OSHA standard" means the Hazard Communication Standard
issued by the Occupational Safety and Health Administration and
codified as 29 CFR Section 1910.1200.
(20) "Physical hazard" means a chemical for which there is
scientifically valid evidence that it is a combustible liquid, a
compressed gas, explosive, flammable, an organic peroxide, an
oxidizer, pyrophoric, unstable (reactive), or water-reactive in
terms defined in the OSHA standard.
(21) "State emergency response commission" means the state
emergency management council or other committee appointed by the
governor in accordance with EPCRA.
(22) "Threshold planning quantity" means the minimum quantity of
an extremely hazardous substance for which a facility owner or
operator must participate in emergency planning, as defined by
the EPA pursuant to EPCRA, Section 302.
(23) "Tier two form" means:
(A) a form specified by the department under Section 505.006 for
listing hazardous chemicals as required by EPCRA; or
(B) a form accepted by the EPA under EPCRA for listing hazardous
chemicals together with additional information required by the
department for administering its functions related to EPCRA.
(24) "Workplace chemical list" means a list of hazardous
chemicals developed under 29 CFR Section 1910.1200(e)(i).
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.005. APPLICABILITY OF CHAPTER. (a) Facility operators
whose facilities are in SIC Codes 20-39 shall comply with this
chapter.
(b) This chapter does not apply to a hazardous chemical in a
sealed package that is received and subsequently sold or
transferred in that package if:
(1) the seal remains intact while the chemical is in the
facility;
(2) the chemical does not remain in the facility longer than
five working days; and
(3) the chemical is not an extremely hazardous substance at or
above the threshold planning quantity or 500 pounds, whichever is
less, as listed by the EPA in 40 CFR Part 355, Appendices A and
B.
(c) This chapter does not apply to:
(1) any hazardous waste, as that term is defined by the federal
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et
seq.), when subject to regulations issued under that Act by the
EPA;
(2) tobacco or tobacco products;
(3) wood or wood products;
(4) articles;
(5) food, drugs, cosmetics, or alcoholic beverages in a retail
food sale establishment that are packaged for sale to consumers;
(6) foods, drugs, or cosmetics intended for personal consumption
by an employee while in the facility;
(7) any consumer product or hazardous substance, as those terms
are defined in the Consumer Product Safety Act (15 U.S.C. Section
2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C.
Section 1261 et seq.), respectively, if the employer can
demonstrate it is used in the facility in the same manner as
normal consumer use and if the use results in a duration and
frequency of exposure that is not greater than exposures
experienced by consumers;
(8) any drug, as that term is defined by the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.), when it is in
solid, final form for direct administration to the patient, such
as tablets or pills;
(9) the transportation, including storage incident to that
transportation, of any substance or chemical subject to this
chapter, including the transportation and distribution of natural
gas; and
(10) radioactive waste.
(d) The director shall develop an outreach program concerning
the public's ability to obtain information under this chapter
similar to the outreach program under Section 502.008.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.006. FACILITY CHEMICAL LIST. (a) For the purpose of
community right-to-know, a facility operator covered by this
chapter shall compile and maintain a tier two form that contains
information on hazardous chemicals present in the facility in
quantities that meet or exceed thresholds determined by the EPA
in 40 CFR Part 370, or at any other reporting thresholds as
determined by board rule for certain highly toxic or extremely
hazardous substances.
(b) Multiple facilities may be reported on the same tier two
form, with appropriate facility identifiers, if the hazardous
chemicals or hazardous chemical categories present at the
multiple facilities are in the same ranges. In multiple facility
reporting, the reporting thresholds must be applied to each
facility rather than to the total quantities present at all
facilities.
(c) Each tier two form shall be filed annually with the
appropriate fee according to the procedures specified by board
rules. The facility operator shall furnish a copy of each tier
two form to the fire chief of the fire department having
jurisdiction over the facility and to the appropriate local
emergency planning committee.
(d) The tier two form shall be used to comply with the updating
requirements in EPCRA Section 311, but a fee may not be
associated with filing the report.
(e) A facility operator shall file the tier two form with the
department not later than the 90th day after the date on which
the operator begins operation or has a reportable addition, at
the appropriate threshold, of a previously unreported hazardous
chemical or extremely hazardous substance. The operator shall
furnish a copy of each tier two form to the fire chief of the
fire department having jurisdiction over the facility and to the
appropriate local emergency planning committee.
(f) A facility operator shall file a material safety data sheet
with the department on the department's request.
(g) The department shall maintain records of the tier two forms
and other documents filed under this chapter or EPCRA for at
least 30 years.
(h) Except as provided by Section 505.015, documents filed under
this chapter are subject to Chapter 552, Government Code.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(88),
eff. Sept. 1, 1995.
Sec. 505.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a) Except
as otherwise provided by this section, a person may request in
writing copies of the facility's existing workplace chemical list
for community right-to-know purposes.
(b) Except as otherwise provided by this section, any facility
covered by this chapter shall furnish or mail, within 10 working
days of the date of receipt of a request under Subsection (a),
either a copy of the facility's existing workplace chemical list
or a modified version of the most recent tier two form using a
500-pound threshold.
(c) Any facility that has received five requests under
Subsection (a) in a calendar month, four requests in a calendar
month for two or more months in a row, or more than 10 requests
in a year may elect to furnish the material to the department.
(d) Any facility electing to furnish the material to the
department under Subsection (c) may during that same filing
period inform persons making requests under Subsection (a) of the
availability of the information at the department and refer the
request to the department for that filing period. The notice to
persons making requests shall state the address of the department
and shall be mailed within seven days of the date of receipt of
the request, if by mail, and at the time of the request if in
person.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.008. EMERGENCY PLANNING INFORMATION. (a) The fire
chief or the fire chief's representative, on request, may conduct
on-site inspections of the chemicals on the tier two form for the
sole purpose of planning fire department activities in case of an
emergency.
(b) A facility operator, on request, shall give the fire chief
or the local emergency planning committee such additional
information on types and amounts of hazardous chemicals present
at a facility as the requestor may need for emergency planning
purposes. A facility operator, on request, shall give the
director, the fire chief, or the local emergency planning
committee a copy of the MSDS for any chemical on the tier two
form furnished under Section 505.006 or for any chemical present
at the facility.
(c) The board by rule may require certain categories of facility
operators under certain circumstances to implement the National
Fire Protection Association 704 identification system if an
equivalent system is not in use.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.009. COMPLAINTS AND INVESTIGATIONS. On presentation of
appropriate credentials, an officer or representative of the
director may enter a facility at reasonable times to inspect and
investigate complaints.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.010. ADMINISTRATIVE PENALTY. (a) The director may
assess an administrative penalty against an operator who violates
this chapter, board rules adopted under this chapter, or an order
issued under this chapter.
(b) If the department finds one or more violations of this
chapter, the director may issue a notice of violation to the
operator. The notice of violation shall specifically describe the
violation, refer to the applicable section or subsection of this
chapter, and state the amount of the penalty, if any, to be
assessed by the director.
(c) An operator who receives a notice of violation may respond
to the department in writing within 15 days of the date of
receipt of the notice of violation in one of the ways provided by
Subsection (d), (e), or (f).
(d) If the operator disputes the validity of the violation and
has reason to believe that the findings of the department were
based on inaccurate or incomplete information, the operator may
request an informal conference with representatives of the
department. The purpose of an informal conference is to permit
the operator to meet with department representatives to discuss
the basis of the violation and to provide information to the
department. The department shall schedule the informal
conference. A request for an informal conference made in bad
faith is a violation of this chapter.
(e) The operator may correct the violation and certify to the
department that the corrections have been made.
(f) The operator may request a hearing.
(g) Following an informal conference, the department shall
respond in writing to the operator, stating whether the
department intends to withdraw the notice of violation or pursue
it. If the department intends to pursue the notice of violation,
the operator may respond as provided by either Subsection (h) or
(i) within 10 days of the date of receipt of the department's
correspondence.
(h) The operator may correct the violation and certify to the
department that the corrections have been made.
(i) The operator may request a hearing.
(j) A request for an informal conference or a statement by an
operator that the operator is in compliance with the provisions
of this chapter does not waive the operator's right to a hearing.
(k) Except as provided in Subsection (l), the director may not
assess an administrative penalty for any violation that has been
corrected within 15 days of the date of the notice of violation,
the date of receipt of the department's response by the employer,
or 10 days after the date of receipt by the operator of the
department's response to the informal conference provided for in
Subsection (d), whichever is later.
(l) If a violation involves a failure to make a good faith
effort to comply with this chapter, the director may assess the
administrative penalty at any time.
(m) In determining the amount of the penalty, the director shall
consider:
(1) the operator's previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public;
(4) the employer's demonstrated good faith;
(5) the duration of the violation; and
(6) other matters as justice may require.
(n) The penalty may not exceed $500 a day for each day a
violation continues, with a total not to exceed $5,000 for each
violation.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a)
An administrative penalty may be assessed only after a facility
operator charged with a violation is given an opportunity for a
hearing.
(b) If a hearing is held, the director shall make findings of
fact and shall issue a written decision regarding the occurrence
of the violation and the amount of the penalty that may be
warranted.
(c) If the facility operator charged with the violation does not
request a hearing, the director may assess a penalty after
determining that a violation has occurred and the amount of the
penalty that may be warranted.
(d) After making a determination under this section that a
penalty is to be assessed against a facility operator, the
director shall issue an order requiring that the facility
operator pay the penalty.
(e) If a penalty is assessed on a complaint, the department may
allow the facility operator to make a grant to the local
emergency planning committee or a member organization instead of
paying the penalty. The department may specify that the operator
join the local emergency planning committee and attend all
meetings for one year or write an article, approved by the
department, concerning community right-to-know laws applicable in
Texas for a trade journal or other business publication.
(f) The director may consolidate a hearing held under this
section with another proceeding.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW. (a) Not later than the 30th day after the date an order
finding that a violation has occurred is issued, the director
shall inform the facility operator against whom the order is
issued of the amount of the penalty for the violation.
(b) Except as provided by in Section 505.011(e), within 30 days
after the date the director's order is final as provided by
Subchapter F, Chapter 2001, Government Code, the facility
operator shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition
for judicial review contesting the occurrence of the violation,
the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(c) Within the 30-day period, a facility operator who acts under
Subsection (b)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the director's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the facility
operator stating that the facility operator is financially unable
to pay the amount of the penalty and is financially unable to
give the supersedeas bond; and
(B) giving a copy of the affidavit to the director by certified
mail.
(d) If the director receives a copy of an affidavit under
Subsection (c)(2), the director may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The facility operator who files an affidavit has the burden
of proving that the facility operator is financially unable to
pay the amount of the penalty and to give a supersedeas bond.
(e) If the facility operator does not pay the amount of the
penalty and the enforcement of the penalty is not stayed, the
director may refer the matter to the attorney general for
collection of the amount of the penalty.
(f) Judicial review of the order of the director:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(g) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the facility operator to pay the full or reduced amount of the
penalty. If the court does not sustain the occurrence of the
violation, the court shall order that no penalty is owed.
(h) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the facility operator
paid the amount of the penalty and if that amount is reduced or
is not upheld by the court, the court shall order that the
appropriate amount plus accrued interest be remitted to the
facility operator. The rate of the interest is the rate charged
on loans to depository institutions by the New York Federal
Reserve Bank, and the interest shall be paid for the period
beginning on the date the penalty was paid and ending on the date
the penalty is remitted. If the facility operator gave a
supersedeas bond and if the amount of the penalty is not upheld
by the court, the court shall order the release of the bond. If
the facility operator gave a supersedeas bond and if the amount
of the penalty is reduced, the court shall order the release of
the bond after the facility operator pays the amount.
(i) All proceedings under this section are subject to Chapter
2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
(53), (59), eff. Sept. 1, 1995.
Sec. 505.013. CIVIL PENALTIES. (a) A person who knowingly
discloses false information or negligently fails to disclose a
hazard as required by this chapter is subject to a civil penalty
of not more than $5,000 for each violation.
(b) This section does not affect any other right of a person to
receive compensation under other law.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.014. CRIMINAL PENALTIES. (a) A person who proximately
causes an occupational disease or injury to an individual by
knowingly disclosing false information or knowingly failing to
disclose hazard information as required by this chapter commits
an offense punishable by a fine of not more than $25,000.
(b) This section does not affect any other right of a person to
receive compensation under other law.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.015. TRADE SECRETS. Facility operators must
substantiate trade secret claims to the administrator of the EPA
in accordance with EPCRA, Section 322.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 505.016. RULES; FEES. (a) The board may adopt rules and
administrative procedures reasonably necessary to carry out the
purposes of this chapter.
(b) The board may authorize the collection of annual fees from
facility operators for the filing of tier two forms required by
this chapter. Except as provided by Subsection (d), fees may be
used only to fund activities under this chapter. The fee for
facilities may not exceed:
(1) $100 for each required submission having no more than 25
hazardous chemicals or hazardous chemical categories;
(2) $200 for each required submission having no more than 50
hazardous chemicals or hazardous chemical categories;
(3) $300 for each required submission having no more than 75
hazardous chemicals or hazardous chemical categories;
(4) $400 for each required submission having no more than 100
hazardous chemicals or hazardous chemical categories; or
(5) $500 for each required submission having more than 100
hazardous chemicals or chemical categories.
(c) To minimize the fees, the board by rule shall provide for
consolidated filings of multiple tier two forms for facility
operators covered by Subsection (b) if each of the tier two forms
contains fewer than 25 items.
(d) The department may use up to 20 percent of the fees
collected under this section as grants to local emergency
planning committees to assist them to fulfill their
responsibilities under EPCRA. The department may use up to 15
percent of the fees collected under this chapter and Chapter 506,
or the amount of fees paid by the state and its political
subdivisions under Chapter 506, whichever is greater, to
administer Chapter 502.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.