CHAPTER 507. NONMANUFACTURING FACILITIES COMMUNITY RIGHT-TO-KNOW ACT

State Codes and Statutes

Statutes > Texas > Health-and-safety-code > Title-6-food-drugs-alcohol-and-hazardous-substances > Chapter-507-nonmanufacturing-facilities-community-right-to-know-act

HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE D. HAZARDOUS SUBSTANCES

CHAPTER 507. NONMANUFACTURING FACILITIES COMMUNITY RIGHT-TO-KNOW

ACT

Sec. 507.001. SHORT TITLE. This chapter may be cited as the

Nonmanufacturing Facilities Community Right-To-Know Act.

Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,

1993.

Sec. 507.002. 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 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. 507.003. FEDERAL LAWS AND REGULATIONS. In this chapter, a

reference to a federal law or regulation means a reference to the

most current version of that law or regulation.

Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,

1993.

Sec. 507.004. 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

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 and 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. The term does not

include a facility subject to Chapter 505 or 506.

(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;

family, or household purposes, or is present in the same form and

concentration as a product packaged for distribution and use by

the general 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 a 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 507.006 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.

Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,

1993.

Sec. 507.005. APPLICABILITY OF CHAPTER. (a) Facility operators

who are not subject to Chapter 505 or 506 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

(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. 507.006. 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.

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 507.012, 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. 507.007. 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 507.006 or for any chemical present

at the 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. 507.008. 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. 507.009. ADMINISTRATIVE PENALTY. (a) The director may

assess an administrative penalty against a facility 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.

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 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) 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 operator's demonstrated good faith;

(5) the duration of the violation; and

(6) other matters as justice may require.

(n) The penalty may not exceed $50 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. 507.010. 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.

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. 507.011. 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 Section 507.010(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.

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 executive 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. 507.012. 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. 507.013. 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 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.

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.

Added by Acts 1993, 73rd Leg., ch. 528, Sec. 2, eff. Sept. 1,

1993.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

Loading..

Loading, Please Wait!