CHAPTER 506. PUBLIC EMPLOYER COMMUNITY RIGHT-TO-KNOW ACT
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE D. HAZARDOUS SUBSTANCES
CHAPTER 506. PUBLIC EMPLOYER COMMUNITY RIGHT-TO-KNOW ACT
Sec. 506.001. SHORT TITLE. This chapter may be cited as the
Public Employer Community Right-To-Know Act.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.002. 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 chemical 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. 506.003. 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 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. 506.004. 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 operated by
the state or a political subdivision of the state.
(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 that 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) "Public employer" means:
(A) the state and political subdivisions of the state, including
state, county, and municipal agencies;
(B) public schools, colleges, and universities;
(C) river authorities and publicly owned utilities;
(D) volunteer emergency service organizations; and
(E) other similar employers who are not covered by the federal
Occupational Safety and Health Act of 1970 (Pub. L. No. 91-596),
the Federal Coal Mine Health and Safety Act of 1969 (Pub. L. No.
91-173), or the Federal Mine Safety and Health Amendments Act of
1977 (Pub. L. No. 95-164).
(22) "State emergency response commission" means the state
emergency management council or other committee appointed by the
governor in accordance with EPCRA.
(23) "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.
(24) "Tier two form" means:
(A) a form specified by the department under Section 506.006 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.
(25) "Workplace chemical list" means a list of hazardous
chemicals developed under Section 502.005(a).
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.005. APPLICABILITY OF CHAPTER. (a) Public employers
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) food, 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 by 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. 506.006. 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) 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, but a fee may not be
associated with filing this report. 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.
(e) A facility operator shall file a material safety data sheet
with the department on the department's request.
(f) The department shall maintain records of the tier two forms
and other documents filed under this chapter or EPCRA for at
least 30 years.
(g) 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. 506.007. 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. 506.008. 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 506.006 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. 506.009. 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. 506.010. 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 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) The director may not assess an administrative penalty for
any violation that has been corrected within 15 days of the date
of receipt 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) 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.
(m) The penalty may not exceed $50 a day for each day a
violation continues, with a total not to exceed $1,000 for each
violation.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.011. 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. 506.012. 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 in Section 506.011(e), not later than the
30th day after the date on which a decision or order charging a
facility operator with a penalty is final, the facility operator
shall pay the penalty in full, unless the facility operator seeks
judicial review of the amount of the penalty, the fact of the
violation, or both. The board may by rule provide for appeals by
the state and political subdivisions of the state.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.013. REFUND OF ADMINISTRATIVE PENALTY. Not later than
the 30th day after the date of a judicial determination that an
administrative penalty against a facility operator should be
reduced or not assessed, the director shall remit to the facility
operator the appropriate amount of any penalty payment already
paid plus accrued interest.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.014. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
GENERAL. The attorney general at the request of the director may
bring a civil action to recover an administrative penalty under
this chapter.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.
Sec. 506.015. 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. 506.016. 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. 506.017. 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. The fee may not exceed:
(1) $50 for each required submission having no more than 75
hazardous chemicals or hazardous chemical categories; or
(2) $100 for each required submission having more than 75
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 15 percent of the fees
collected under Chapter 505 and this chapter, or the amount of
fees paid by the state and its political subdivisions under this
chapter, whichever is greater, to administer Chapter 502.
Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,
1993.