APPENDIX A

                   SELECTED FEDERAL AND STATE OF TEXAS REGULATIONS


 

INDEX OF SELECTED US DOT REGULATIONS

Outline for Subchapter A – Hazardous Materials and Oil Transportation

 

 

 

A-3

Outline for Subchapter C – Hazardous Materials Regulations

 

A-3

49 CFR 171.2           General requirements

 

A-3

49 CFR 171.15         Immediate notice of certain hazardous materials incidents.

 

A-4

49 CFR 171.16         Detailed hazardous materials incident reports.

 

A-6

49 CFR 172.600       Applicability and general requirements.

 

A-7

49 CFR 172.602       Emergency response information.

 

A-7

49 CFR 172.604       Emergency response telephone number.

 

A-8

49 CFR 172.606       Carrier information contact.

 

A-9

49 CFR 172.700       Purpose and scope.

 

A-10

49 CFR 172.701       Federal-State relationship.

 

A-10

49 CFR 172.702       Applicability and responsibility for training and testing

 

A-10

49 CFR 172.704       Training requirements.

 

A-10

PART 177                  Carriage by Public Highway‑‑Table of Contents  

 

A-12

49 CFR 177.800       Purpose and scope of this part and responsibility for compliance and training.

 

A-12

49 CFR 177.816       Driver training.

 

A-13

49 CFR 177.817       Shipping Papers

 

A-14

PART 390                  Federal Motor Carrier Safety Regulations; General -- Table of Contents

 

A-15

PART 391                  Qualifications of Drivers -- Table of Contents

 

A-15

PART 392                  Driving of Commercial Motor Vehicles -- Table of Contents

 

A-16

PART 393                  Parts and Accessories Necessary for Safe Operation -- Table of Contents

 

A-16

PART 395                  Hours of Service of Drivers -- Table of Contents

 

A-16

PART 396                  Inspection, Repair, and Maintenance -- Table of Contents 

 

 

A-16

PART 397                  Transportation of Hazardous Materials; Driving and Parking Rules -- Table of Contents

 

A-17

 

INDEX OF SELECTED US EPA REGULATIONS

 

 

40 CFR 355   Emergency Planning and Notification

 

A-18

40 CFR 370   Hazardous Chemical Reporting: Community Right‑To‑Know

 

A-23

 

INDEX OF SELECTED OSHA REGULATIONS

 

 

29 CFR 1910.38                   Employee emergency plans and fire prevention plans

 

A-29

29 CFR 1910, E                    Appendix to Subpart E‑‑Means of Egress.  Guideline (nonmandatory) for emergency action plans.

 

A-30


29 CFR 1910.132                 General requirements.

 

 

A-3229 CFR 1910.120(q)   Hazardous waste operations and emergency response. (Emergency Response portion only)

 

A-34

29 CFR 1910.151                 Medical services and first aid.

 

A-39

App. A to Sec 1910.151      First Aid Kits (non-mandatory)

 

A-39

29 CFR 1910.165                 Employee alarm systems.

 

A-40

29 CFR 1910.1200              Hazard communication (Without Appendices)

 

A-41

 

INDEX OF SELECTED STATE OF TEXAS CODES

 

 

TX H & S Code, Ch 502      Hazard Communication Act

 

A-58

TX H & S Code, Ch 507      Nonmanufacturing Facilities Community Right-To-Know Act

 

A-71


 



                                       SELECTED REGULATIONS

 

                                   SELECTED US DOT REGULATIONS

Outline for Subchapter A – Hazardous Materials and Oil Transportation

Part  

106     Rulemaking procedures

107     Hazardous materials program procedures

110     Hazardous materials public sector training and planning grants

 

Outline for Subchapter C – Hazardous Materials Regulations

171     General information, regulations, and definitions

172     Hazardous materials table, special provisions, hazardous materials communications, emergency response information, and training requirements

173     Shippers-general requirements for shipments and packagings

174     Carriage by rail

175     Carriage by aircraft

176     Carriage by vessel

177     Carriage by public highway

178     Specifications for packagings

179     Specifications for tank cars

180     Continuing qualification and maintenance of packagings

 

49 CFR 171.2  General requirements.

    (a) No person may offer or accept a hazardous material for transportation in commerce unless that person is registered in conformance with subpart G of part 107 of this chapter, if applicable, and the hazardous material is properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements of this subchapter, or an exemption, approval or registration issued under this subchapter or subchapter A of this chapter.

    (b) No person may transport a hazardous material in commerce unless that person is registered in conformance with subpart G of part 107 of this chapter, if applicable, and the hazardous material is handled and transported in accordance with applicable requirements of this subchapter, or an exemption, approval or registration issued under this subchapter or subchapter A of this chapter.

    (c) No person may represent, mark, certify, sell, or offer a packaging or container as meeting the requirements of this subchapter or an exemption, approval or registration issued under this subchapter or subchapter A of this chapter, governing its use in the transportation in commerce of a hazardous material, whether or not it is used or intended to be used for the transportation of a hazardous material, unless the packaging or container is manufactured, fabricated, marked, maintained, reconditioned, repaired and retested, as appropriate, in accordance with applicable requirements of this subchapter, or an exemption, approval or registration issued under this subchapter or subchapter A of this chapter.


    (d) The representations, markings, and certifications subject to the prohibitions of paragraph (c) of this section include, but are not limited to‑‑

    (1) Specification identifications that include the letters ``ICC,'' ``DOT,'' ``MC,'' or ``UN'';

    (2) Exemption, approval, and registration numbers that include the letters ``DOT,'' ``EX,'' ``M,'' or ``R''; and

    (3) Test dates associated with specification, registration, approval, retest or exemption markings indicating compliance with a test or retest requirement of this subchapter, or an exemption, an approval or a registration issued under this subchapter or subchapter A of this chapter.

   (e) When a person performs a function covered by or having an effect on a specification prescribed in part 178, 179 or 180 of this subchapter, an approval issued under this subchapter, or an exemption issued under subpart B of this chapter, that person must perform the function in accordance with that specification, approval, or exemption, as appropriate.

    (f) No person shall, by marking or otherwise, represent that‑‑

    (1) A container or package for the transportation of hazardous materials is safe, certified, or in compliance with the requirements of this title unless it meets the requirements of all applicable regulations issued under the Federal hazardous material transportation law; or

    (2) A hazardous material is present in a package, container, motor vehicle, rail car, aircraft, or vessel, if the hazardous material is not present.

    (g) No person shall unlawfully alter, remove, deface, destroy, or otherwise tamper with‑‑

    (1) Any marking, label, placard, or description on a document required by the Federal hazardous material transportation law, or the regulations issued thereunder; or

    (2) Any package, container, motor vehicle, rail car, aircraft, or vessel used for the transportation of hazardous materials.

    (h) No person shall‑‑

    (1) Falsify or alter an exemption, approval, registration or other grant of authority issued under this subchapter or subchapter A of this chapter; or

    (2) Offer a hazardous material for transportation or transport a hazardous material in commerce, or represent, mark, certify, or sell a packaging or container, under a false or altered exemption, approval, registration or other grant of authority issued under this subchapter or subchapter A of this chapter.

[Amdt. 171‑70, 48 FR 2655, Jan. 20, 1983, as amended by Amdt. No. 171‑100, 54 FR 25004, June 12, 1989; Amdt. 171‑12, 56 FR 8624, Feb. 28, 1991; Amdt. No. 171‑115, 57 FR 30631, July 9, 1992; 57 FR 37902, Aug. 21, 1992; Amdt. No. 171‑120, 58 FR 33305, June 16, 1993; Amdt. 171‑2, 59 FR 49132, Sept. 26, 1994; Amdt. 171‑141, 61 FR 21101, May 9, 1996]

 

Sec. 171.15  Immediate notice of certain hazardous materials incidents.

    (a) At the earliest practicable moment, each carrier who transports hazardous materials (including hazardous wastes) shall give notice in accordance with paragraph (b) of this section after each incident that occurs during the course of transportation (including loading, unloading and temporary storage) in which‑‑


    (1) As a direct result of hazardous materials‑‑

    (i) A person is killed; or

    (ii) A person receives injuries requiring his or her hospitalization; or

    (iii) Estimated carrier or other property damage exceeds $50,000; or

    (iv) An evacuation of the general public occurs lasting one or more hours; or

    (v) One or more major transportation arteries or facilities are closed or shut down for one hour or more; or

    (vi) The operational flight pattern or routine of an aircraft is altered; or

    (2) Fire, breakage, spillage, or suspected radioactive contamination occurs involving shipment of radioactive material (see also Secs. 174.45, 176.48, and 177.807 of this subchapter); or

    (3) Fire, breakage, spillage, or suspected contamination occurs involving shipment of infectious substances (etiologic agents); or

    (4) There has been a release of a marine pollutant in a quantity exceeding 450 L (119 gallons) for liquids or 400 kg (882 pounds) for solids; or

    (5) A situation exists of such a nature (e.g., a continuing danger to life exists at the scene of the incident) that, in the judgment of the carrier, it should be reported to the Department even though it does not meet the criteria of paragraph (a) (1), (2) or (3) of this section.

 

    (b) Except for transportation by aircraft, each notice required by paragraph (a) of this section shall be given to the Department by telephone (toll‑free) on 800‑424‑8802. Notice involving shipments transported by aircraft must be given to the nearest FAA Civil Aviation Security Office by telephone at the earliest practical moment after each incident in place of the notice to the Department. Notice involving etiologic agents may be given to the Director, Centers for Disease Control, U.S. Public Health Service, Atlanta, Ga. (800) 232‑0124, in place of the notice to the Department or (toll call) on 202‑267‑2675.

Each notice must include the following information:

    (1) Name of reporter.

    (2) Name and address of carrier represented by reporter.

    (3) Phone number where reporter can be contacted.

    (4) Date, time, and location of incident.

    (5) The extent of injuries, if any.

    (6) Classification, name, and quantity of hazardous materials involved, if such information is available.

    (7) Type of incident and nature of hazardous material involvement and whether a continuing danger to life exists at the scene.

    (c) Each carrier making a report under this section shall also make the report required by Sec. 171.16.

    Note: Under 40 CFR 302.6 EPA requires persons in charge of facilities (including transport vehicles, vessels and aircraft) to report any release of a hazardous substance in a quantity equal to or greater than its reportable quantity, as soon as that person has knowledge of the release, to the U.S. Coast Guard National Response Center at (toll free) 800‑424‑8802 or (toll) 202‑267‑2675.

[Amdt. 171‑7, 35 FR 16837, Oct. 3, 1970]


§ 171.16 Detailed hazardous materials incident reports.

  (a) Each carrier who transports hazardous materials shall report in writing, in duplicate, on DOT Form F 5800.1 (Rev. 6/89) to the Department within 30 days of the date of discovery, each incident that occurs during the course of transportation (including loading, unloading, and temporary storage) in which any of the circumstances set forth in § 171.15(a) occurs, or there has been an unintentional release of a hazardous material from a package (including a tank), or any quantity of hazardous waste has been discharged during transportation.  If a report pertains to a hazardous waste discharge:

 (1)      A copy of the hazardous waste manifest for the waste must be attached to the report; and

 (2)      An estimate of the quantity of the waste removed from the scene, the name and address of the facility to which it was taken, and the manner of disposition of any removed waste must be entered in Section IX of the report form (Form F 5800.1) (Rev. 6/89).

  (b) Each carrier making a report under this section shall send the report to the Information Systems Manager, Programs Administration, Department of Transportation, Washington, D.C.20590-0001; and for incidents involving transportation by aircraft, a copy of the report shall also be sent to the FAA Civil Aviation Security Office nearest the location of the incident.  A copy of the report shall be retained for a period of two years at the carrier’s principle place of business, or at other laces as authorized and approved in writing by an agency of the Department of Transportation.

  (c) Except as provided in paragraph (d) pf this section, the requirements of paragraph (a) of this section do not apply to incidents involving the unintentional release of a hazardous material –

 (1)      Transported under one of the following proper shipping names:

(i).   Consumer commodity

(ii).  Battery, electric storage, wet, filled with acid or alkali

(iii)  Paint and paint related material when shipped in a packaging of five gallons or less

  (2)     Prepared and transported as a limited quantity shipment in accordance with this subchapter.

  (d)  The exceptions to incident reporting provided in paragraph (c) of this section do not apply to:

 (1) Incidents required to be reported under § 171.15(a);

 (2) Incidents involving transportation by aircraft;

 (3) Except for consumer commodities, materials in Packing Group I; or

 (4) Incidents involving the transportation of hazardous waste.

Note: A guideline document for assisting in the completion of DOT   Form F 5800.1 (Rev. 6/89) may be obtained from the Office of Hazardous Materials Transportation, Department of Transportation, Washington, D.C.20590-0001.

[Amdt. 171-7, 35 FR 16837, Oct. 3, 1970, as amended by Amdt. 171-56, 45 FR 73683, Nov. 6, 1980; Amdt. No. 171.65, 47 FR 24584, June 7, 1982; Amdt. 171-21, 48 FR 17095, Apr. 21, 1983; Amdt. 171-101, 54 FR 25813, June 19, 1989; Amdt. 171-109, 55 FR 39978, Oct. 1, 1990; Amdt. 171-140, 61 FR 18932, Apr. 29, 1996; Amdt. 171-145, 61 FR 27172, May 30, 1996]

 


Sec. 172.600  Applicability and general requirements.

    (a) Scope. Except as provided in paragraph (d) of this section, this subpart prescribes requirements for providing and maintaining emergency response information during transportation and at facilities where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation.

    (b) Applicability. This subpart applies to persons who offer for transportation, accept for transportation, transfer or otherwise handle hazardous materials during transportation.

    (c) General requirements. No person to whom this subpart applies may offer for transportation, accept for transportation, transfer, store or otherwise handle during transportation a hazardous material unless:

    (1) Emergency response information conforming to this subpart is immediately available for use at all times the hazardous material is present; and

    (2) Emergency response information, including the emergency response telephone number, required by this subpart is immediately available to any person who, as a representative of a Federal, State or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation which involves a hazardous material.

    (d) Exceptions. The requirements of this subpart do not apply to hazardous material which is excepted from the shipping paper requirements of this subchapter or a material properly classified as an ORM‑D.

[Amdt. 172‑116, 54 FR 27145, June 27, 1989; 54 FR 28750, July 5, 1989, as amended at 55 FR 33712, Aug. 17, 1990; 172‑127, 59 FR 49133, Sept. 26, 1994; Amdt. 172‑149, 61 FR 27173, May 30, 1996]

 

Sec. 172.602  Emergency response information.

    (a) Information required. For purposes of this subpart, the term ``emergency response information'' means information that can be used in the mitigation of an incident involving hazardous materials and, as a minimum, must contain the following information:

    (1) The basic description and technical name of the hazardous material as required by Secs. 172.202 and 172.203(k), the ICAO Technical Instructions, the IMDG Code, or the TDG Regulations, as appropriate;

    (2) Immediate hazards to health;

    (3) Risks of fire or explosion;

    (4) Immediate precautions to be taken in the event of an accident or incident;

    (5) Immediate methods for handling fires;

    (6) Initial methods for handling spills or leaks in the absence of fire; and

    (7) Preliminary first aid measures.

    (b) Form of information. The information required for a hazardous material by paragraph (a) of this section must be:

    (1) Printed legibly in English;

    (2) Available for use away from the package containing the hazardous material; and

    (3) Presented‑‑

    (i) On a shipping paper;


    (ii) In a document, other than a shipping paper, that includes both the basic description and technical name of the hazardous material as required by Secs. 172.202 and 172.203(k), the ICAO Technical Instructions, the IMDG Code, or the TDG Regulations, as appropriate, and the emergency response information required by this subpart (e.g., a material safety data sheet); or

    (iii) Related to the information on a shipping paper, a written notification to pilot‑in‑command, or a dangerous cargo manifest, in a separate document (e.g., an emergency response guidance document), in a manner that cross‑references the description of the hazardous material on the shipping paper with the emergency response information contained in the document. Aboard aircraft, the ICAO ``Emergency Response Guidance for Aircraft Incidents Involving Dangerous Goods'' and, aboard vessels, the IMO ``Emergency Procedures for Ships Carrying Dangerous Goods'', or equivalent documents, may be used to satisfy the requirements of this section for a separate document.

    (c) Maintenance of information. Emergency response information shall be maintained as follows:

    (1) Carriers. Each carrier who transports a hazardous material shall maintain the information specified in paragraph (a) of this section and Sec. 172.606 of this part in the same manner as prescribed for shipping papers, except that the information must be maintained in the same manner aboard aircraft as the notification of pilot‑in‑command, and aboard vessels in the same manner as the dangerous cargo manifest. This information must be immediately accessible to train crew personnel, drivers of motor vehicles, flight crew members, and bridge personnel on vessels for use in the event of incidents involving hazardous materials.

    (2) Facility operators. Each operator of a facility where a hazardous material is received, stored or handled during transportation, shall maintain the information required by paragraph (a) of this section whenever the hazardous material is present. This information must be in a location that is immediately accessible to facility personnel in the event of an incident involving the hazardous material.

[Amdt. 172‑116, 54 FR 27146, June 27, 1989; 54 FR 28750, July 5, 1989, as amended by Amdt. 172‑116, 55 FR 875, Jan. 10, 1990; Amdt. 172‑151, 62 FR 1234, Jan. 8, 1997]

 

Sec. 172.604  Emergency response telephone number.

    (a) A person who offers a hazardous material for transportation must provide a 24‑hour emergency response telephone number (including the area code or international access code) for use in the event of an emergency involving the hazardous material. The telephone number must be‑‑

    (1) Monitored at all times the hazardous material is in transportation, including storage incidental to transportation;

    (2) The number of a person who is either knowledgeable of the hazardous material being shipped and has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person who possesses such knowledge and information; and

    (3) Entered on a shipping paper, as follows:

    (i) Immediately following the description of the hazardous material required by subpart C of this part; or

    (ii) Entered once on the shipping paper in a clearly visible location. This provision may be used only if the telephone number applies to each hazardous material entered on the shipping paper, and if it is indicated that the telephone number is for emergency response information (for example: ``EMERGENCY CONTACT: * * *).

    (b) The telephone number required by paragraph (a) of this section must be the number of the person offering the hazardous material for transportation or the number of an agency or organization capable of, and accepting responsibility for, providing the detailed information concerning the hazardous material. A person offering a hazardous material for transportation who lists the telephone number of an agency or organization shall ensure that agency or organization has received current information on the material, as required by paragraph (a)(2) of this section before it is offered for transportation.

    (c) The requirements of this section do not apply to‑‑

    (1) Hazardous materials that are offered for transportation under the provisions applicable to limited quantities; and

    (2) Materials properly described under the shipping names ``Engines, internal combustion'', ``Battery powered equipment'', ``Battery powered vehicle'', Wheelchair, electric'', ``Carbon dioxide, solid'', ``Dry ice'', ``Fish meal, stabilized'', ``Fish scrap, stabilized'', ``Castor bean'', ``Castor meal'', ``Castor flake'', ``Castor pomace'', or ``Refrigerating machine''.

[Amdt. 172‑116, 54 FR 27145, June 27, 1989, as amended at 55 FR 33713, Aug. 17, 1990; Amdt. 172‑127, 59 FR 49133, Sept. 26, 1994; Amdt. 172‑149, 61 FR 27173, May 30

 

Sec. 172.606  Carrier information contact.

    (a) Each carrier who transports or accepts for transportation a hazardous material for which a shipping paper is required shall instruct the operator of a motor vehicle, train, aircraft, or vessel to contact the carrier (e.g., by telephone or mobile radio) in the event of an incident involving the hazardous material.

    (b) For transportation by highway, if a transport vehicle, (e.g., a semi‑trailer or freight container‑on‑chassis) contains hazardous material for which a shipping paper is required and the vehicle is separated from its motive power and parked at a location other than a facility operated by the consignor or consignee or a facility (e.g., a carrier's terminal or a marine terminal) subject to the provisions of Sec. 172.602(c)(2), the carrier shall‑‑

    (1) Mark the transport vehicle with the telephone number of the motor carrier on the front exterior near the brake hose and electrical connections or on a label, tag, or sign attached to the vehicle at the brake hose or electrical connection; or

    (2) Have the shipping paper and emergency response information readily available on the transport vehicle.

    (c) The requirements specified in paragraph (b) of this section do not apply to an unattended motor vehicle separated from its motive power when the motor vehicle is marked on an orange panel, a placard, or a plain white square‑on‑point configuration with the identification number of each hazardous material loaded therein, and the marking or placard is visible on the outside of the motor vehicle.

[Amdt. 172-151, 62 FR 1234, Jan. 8, 1997, as amended at 62 FR 39398 and 39409, July 22, 1997; 63 FR 16076, Apr. 1, 1998]


172.700  Purpose and scope.

    (a) Purpose. This subpart prescribes requirements for training hazmat employees.

    (b) Scope. Training as used in this subpart means a systematic program that ensures a hazmat employee has familiarity with the general provisions of this subchapter, is able to recognize and identify hazardous materials, has knowledge of specific requirements of this subchapter applicable to functions performed by the employee, and has knowledge of emergency response information, self‑protection measures and accident prevention methods and procedures (see Sec. 172.704).

    (c) Modal-specific training requirements. Additional training requirements for the individual modes of transportation are prescribed in parts 174, 175, 176, and 177 of this subchapter.

 

Sec. 172.701  Federal‑State relationship.

    This subpart and the parts referenced in Sec. 172.700(c) prescribe minimum training requirements for the transportation of hazardous materials. For motor vehicle drivers, however, a State may impose more stringent training requirements only if those requirements:

    (a) Do not conflict with the training requirements in this subpart and in part 177 of this subchapter; and  (b) Apply only to drivers domiciled in that State.

 

Sec. 172.702  Applicability and responsibility for training and testing.

    (a) A hazmat employer shall ensure that each of its hazmat employees is trained in accordance with the requirements prescribed in this subpart.

    (b) Except as provided in Sec. 172.704(c)(1), a hazmat employee who performs any function subject to the requirements of this subchapter may not perform that function unless instructed in the requirements of this subchapter that apply to that function. It is the duty of each hazmat employer to comply with the applicable requirements of this subchapter and to thoroughly instruct each hazmat employee in relation thereto.

    (c) Training may be provided by the hazmat employer or other public or private sources.

   (d) A hazmat employer shall ensure that each of its hazmat employees is tested by appropriate means on the training subjects covered in Sec. 172.704.

[Amdt. 172‑126, 57 FR 20952, May 15, 1992; 57 FR 22182, May 27, 1992, as amended by Amdt. 172‑149, 61 FR 27173, May 30, 1996]

 

Sec. 172.704  Training requirements.

    (a) Hazmat employee training shall include the following:

    (1) General awareness/familiarization training. Each hazmat employee shall be provided general awareness/familiarization training designed to provide familiarity with the requirements of this subchapter, and to enable the employee to recognize and identify hazardous materials consistent with the hazard communication standards of this subchapter.

    (2) Function-specific training. (i) Each hazmat employee shall be provided function‑specific training concerning requirements of this subchapter, or exemptions issued under subchapter A of this chapter, which are specifically applicable to the functions the employee performs.

    (ii) As an alternative to function‑specific training on the requirements of this subchapter, training relating to the requirements of the ICAO Technical Instructions and the IMDG Code may be provided to the extent such training addresses functions authorized by Secs. 171.11 and 171.12 of this subchapter.

    (3) Safety training. Each hazmat employee shall receive safety training concerning‑‑

    (i) Emergency response information required by subpart G of part 172;

    (ii) Measures to protect the employee from the hazards associated with hazardous materials to which they may be exposed in the work place, including specific measures the hazmat employer has implemented to protect employees from exposure; and

    (iii) Methods and procedures for avoiding accidents, such as the proper procedures for handling packages containing hazardous materials.

    (b) OSHA or EPA Training. Training conducted by employers to comply with the hazard communication programs required by the Occupational Safety and Health Administration (OSHA) of the Department of Labor (29 CFR 1910.120) or the Environmental Protection Agency (EPA) (40 CFR 311.1), to the extent that training addresses the training specified in paragraph (a) of this section, may be used to satisfy the training requirements in paragraph (a) of this section, in order to avoid unnecessary duplication of training.

    (c) Initial and recurrent training‑‑(1) Initial training. A new hazmat employee, or a hazmat employee who changes job functions may perform those functions prior to the completion of training provided:

    (i) The employee performs those functions under the direct supervision of a properly trained and knowledgeable hazmat employee; and

    (ii) The training is completed within 90 days after employment or a change in job function.

    (2) Recurrent training. A hazmat employee shall receive the training required by this subpart at least once every three years.

    (3) Relevant Training. Relevant training received from a previous employer or other source may be used to satisfy the requirements of this subpart provided a current record of training is obtained from hazmat employees' previous employer.

    (4) Compliance. Each hazmat employer is responsible for compliance with the requirements of this subchapter regardless of whether the training required by this subpart has been completed.

    (d) Recordkeeping. A record of current training, inclusive of the preceding three years, in accordance with this section shall be created and retained by each hazmat employer for as long as that employee is employed by that employer as a hazmat employee and for 90 days thereafter. The record shall include:

    (1) The hazmat employee's name;

    (2) The most recent training completion date of the hazmat employee's training;

   (3) A description, copy, or the location of the training materials used to meet the requirements in paragraph (a) of this section;

    (4) The name and address of the person providing the training; and

    (5) Certification that the hazmat employee has been trained and tested, as required by this subpart.

    (e) Limitation. A hazmat employee who repairs, modifies, reconditions, or tests packagings as qualified for use in the transportation of hazardous materials, and who does not perform any other function subject to the requirements of this subchapter, is not subject to the safety training requirement of paragraph (a)(3) of this section.

[Amdt. 172-126, 57 FR 20952, May 15, 1992, as amended by Amdt. 172-126, 58 FR 5851, Jan. 22, 1993; Amdt. 172-145, 60 FR 49110, Sept. 21, 1995; Amdt. 172-149, 61 FR 27173, May 30, 1996]

 

PART 177--CARRIAGE BY PUBLIC HIGHWAY--Table of Contents

177.800          Purpose and scope of this part and responsibility for compliance and training

177.801          Unacceptable hazardous materials shipments.

177.802          Inspection.

177.804          Compliance with Federal Motor Carrier Safety Regulations.

177.810          Vehicular tunnels.

177.816          Driver training

177.817          Shipping papers

177.823          Movement of motor vehicles in emergency situations.

177.834          General requirements.

177.835          Class 1 (explosive) materials.

177.837          Class 3 (flammable liquid) materials.

177.838          Class 4 (flammable solid) materials, Class 5 (oxidizing) materials, and Division 4.2 (pyrophoric liquid) materials.

177.839          Class 8 (corrosive) materials.

177.840          Class 2 (gases) materials.

177.841          Division 6.1 (poisonous) & Division 2.3 (poisonous gas) materials.

177.842          Class 7 (radioactive) material.

177.843          Contamination of vehicles.

177.848          Segregation of Hazardous Materials

177.854          Disabled vehicles and broken or leaking packages; repairs.

177.870          Regulations for passenger carrying vehicles.

 

 49 CFR 177.800      Purpose and scope of this part and responsibility for compliance and training.

    (a) Purpose and scope. This part prescribes requirements, in addition to those contained in parts 171, 172, 173, 178 and 180 of this subchapter, that are applicable to the acceptance and transportation of hazardous materials by private, common, or contract carriers by motor vehicle.

    (b) Responsibility for compliance. Unless this subchapter specifically provides that another person shall perform a particular duty, each carrier, including a connecting carrier, shall perform the duties specified and comply with all applicable requirements in this part and shall ensure its hazmat employees receive training in relation thereto.


    (c) Responsibility for training. A carrier may not transport a hazardous material by motor vehicle unless each of its hazmat employees involved in that transportation is trained as required by this part and subpart H of part 172 of this subchapter.

    (d) No unnecessary delay in movement of shipments. All shipments of hazardous materials must be transported without unnecessary delay, from and including the time of commencement of the loading of the hazardous material until its final unloading at destination.

[Amdt. 177-79, 57 FR 20954, May 15, 1992, as amended by Amdt.177-86, 61 FR 18933, Apr. 29, 1996]

 

49 CFR 177.816  Driver training.

    (a) In addition to the training requirements of Sec. 177.800, no carrier may transport, or cause to be transported, a hazardous material unless each hazmat employee who will operate a motor vehicle has been trained in the applicable requirements of 49 CFR parts 390 through 397 and the procedures necessary for the safe operation of that motor vehicle. Driver training shall include the following subjects:

    (1) Pre‑trip safety inspection;

    (2) Use of vehicle controls and equipment, including operation of emergency equipment;

    (3) Operation of vehicle, including turning, backing, braking, parking, handling, and vehicle characteristics including those that affect vehicle stability, such as effects of braking and curves, effects of speed on vehicle control, dangers associated with maneuvering through curves, dangers associated with weather or road conditions that a driver may experience (e.g., blizzards, mountainous terrain, high winds), and high center of gravity;

    (4) Procedures for maneuvering tunnels, bridges, and railroad crossings;

    (5) Requirements pertaining to attendance of vehicles, parking, smoking, routing, and incident reporting; and

    (6) Loading and unloading of materials, including–

    (i) Compatibility and segregation of cargo in a mixed load;

    (ii) Package handling methods; and

    (iii) Load securement.

    (b) Specialized requirements for cargo tanks and portable tanks. In addition to the training requirement of paragraph (a) of this section, each person who operates a cargo tank or a vehicle with a portable tank with a capacity of 1,000 gallons or more must receive training applicable to the requirements of this subchapter and have the appropriate State‑issued commercial driver's license required by 49 CFR part 383. Specialized training shall include the following:

    (1) Operation of emergency control features of the cargo tank or portable tank;

    (2) Special vehicle handling characteristics, including: high center of gravity, fluid‑load subject to surge, effects of fluid‑load surge on braking, characteristic differences in stability among baffled, unbaffled, and multi‑compartmented tanks; and effects of partial loads on vehicle stability;

    (3) Loading and unloading procedures;

    (4) The properties and hazards of the material transported; and

    (5) Retest and inspection requirements for cargo tanks.

    (c) The training required by paragraphs (a) and (b) of this section may be satisfied by compliance with the current requirements for a Commercial Driver's License (CDL) with a tank vehicle or hazardous materials endorsement.

    (d) Training required by paragraph (b) of this section must conform to the requirements of Sec. 172.704 of this subchapter with respect to frequency and recordkeeping.     [Amdt. 177‑79, 57 FR 20954, May 15, 1992, as amended by Amdt. 177‑79, 58  FR 5852, Jan. 22, 1993]

 

49 CFR 177.817  Shipping papers.

    (a) General requirements. A carrier may not transport a hazardous material unless it is accompanied by a shipping paper that is prepared in accordance with Secs. 172.200, 172.201, 172.202, and 172.203 of this subchapter.

    (b) Shipper certification. An initial carrier may not accept a hazardous material offered for transportation unless the shipping paper describing the material includes a shipper's certification which meets the requirements in Sec. 172.204 of this subchapter. Except for a hazardous waste, the certification is not required for shipments to be transported entirely by private carriage and for bulk shipments to be transported in a cargo tank supplied by the carrier.

    (c) Requirements when interlining with carriers by rail. A motor carrier shall mark on the shipping paper required by this section, if it offers or delivers a freight container or transport vehicle to a rail carrier for further transportation;

    (1) A description of the freight container or transport vehicle; and

    (2) The kind of placard affixed to the freight container or transport vehicle.

    (d) This subpart does not apply to a material that is excepted from shipping paper requirements as specified in Sec. 172.200 of this subchapter.

    (e) Shipping paper accessibility‑‑accident or inspection. A driver of a motor vehicle containing hazardous material, and each carrier using such a vehicle, shall ensure that the shipping paper required by this section is readily available to, and recognizable by, authorities in the event of accident or inspection. Specifically, the driver and the carrier shall:

    (1) Clearly distinguish the shipping paper, if it is carried with other shipping papers or other papers of any kind, by either distinctively tabbing it or by having it appear first; and

    (2) Store the shipping paper as follows:

    (i) When the driver is at the vehicle's controls, the shipping paper shall be: (A) Within his immediate reach while he is restrained by the lap belt; and (B) either readily visible to a person entering the driver's compartment or in a holder which is mounted to the inside of the door on the driver's side of the vehicle.

    (ii) When the driver is not at the vehicle's controls, the shipping paper shall be: (A) In a holder which is mounted to the inside of the door on the driver's side of the vehicle; or (B) on the driver's seat in the vehicle.

[Amdt. 177‑35, 41 FR 16130, Apr. 15, 1976, as amended by Amdt. 177‑35A, 41 FR 40691, Sept. 20, 1976; Amdt. 177‑48, 45 FR 47670, Nov. 10, 1980; Amdt. 177‑65, 50 FR 11055, Mar. 19, 1985; Amdt. 177‑72, 53 FR 17160, May 13, 1988]


49 CFR PART 390  FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL ‑‑Table of Contents

           390.1               Purpose.

           390.3               General applicability.

           390.5               Definitions.

           390.7               Rules of construction.

           390.9               State and local laws, effect on.

           390.11 Motor carrier to require observance of driver regulations.

390.13            Aiding or abetting violations.

390.15            Assistance in investigations and special studies.

390.19            Additional equipment and accessories.

390.21            Marking of commercial motor vehicles.

390.23            Relief from regulations.

390.25            Extension of relief from regulations‑‑emergencies.

390.29            Location of records or documents.

390.31            Copies of records or documents.

390.33            Commercial motor vehicles used for purposes other than defined.

390.35            Certificates, reports, and records: Falsification, reproduction, or alteration.

390.37            Violation and penalty.

390.401          Applicability.

390.403          Method of identification.

390.405          Size, shape, and color.

390.407          Driveaway service.

 

PART 391--QUALIFICATIONS OF DRIVERS--Table of Contents

391.1              Scope of the rules in this part; additional qualifications; duties of carrier‑drivers.

391.2              General exemptions.

391.11            General qualifications of drivers.

391.13            Responsibilities of drivers.

391.15            Disqualification of drivers.

391.21            Application for employment.

391.23            Investigation and inquiries.

391.25            Annual inquiry and review of driving record.

391.27            Record of violations.

391.31            Road test.

391.33            Equivalent of road test.

391.41            Physical qualifications for drivers.

391.43            Medical examination; certificate of physical examination.

391.45            Persons who must be medically examined and certified.

391.47            Resolution of conflicts of medical evaluation.

391.49            Waiver of certain physical defects.

391.51            General requirements for driver qualification files.


391.61            Drivers who were regularly employed before January 1, 1971.

391.62            Limited exemptions for intra‑city zone drivers.

391.63            Multiple‑employer drivers.

391.64            Grandfathering for certain drivers participating in vision and diabetes waiver study programs.

391.65            Drivers furnished by other motor carriers.

391.67            Farm vehicle drivers of articulated commercial motor vehicles.

391.68            Private motor carrier of passengers (nonbusiness).

391.69            Private motor carrier of passengers (business).

 

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES-- Table of Contents

392.1 Scope of the rules in this part.

392.2              Applicable operating rules.

392.3              Ill or fatigued operator.

392.4 Drugs and other substances.

392.5 Alcohol prohibition.

392.6 Schedules to conform with speed limits.

392.7              Equipment, inspection and use.

392.8              Emergency equipment, inspection and use.

392.9              Safe loading.

392.10            Railroad grade crossings; stopping required.

392.11            Railroad grade crossings; slowing down required.

392.14            Hazardous conditions; extreme caution.

392.16            Use of seat belts.

392.22            Emergency signals; stopped commercial motor vehicles.

392.24            Emergency signals; flame‑producing.

392.25            Flame producing devices.

392.33            Obscured lamps or reflectors.

392.50            Ignition of fuel; prevention.

392.51            Reserve fuel; materials of trade.

392.60            Unauthorized persons not to be transported.

392.62            Safe operation, buses.

392.63            Towing or pushing loaded buses.

392.64            Riding within closed commercial motor vehicles without proper exits.

392.66            Carbon monoxide; use of commercial motor vehicle when detected.

392.67            Heater, flame-producing; on commercial motor vehicle in motion.

392.71            Radar detectors; use and/or possession.

 

PART 393                 PARTS AND ACCESSORIES NECESSARY FOR SAFE  OPERATION

PART 395                 HOURS OF SERVICE OF DRIVERS

PART 396                 INSPECTION, REPAIR, AND MAINTENANCE

 

 


PART 397                 TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING        AND PARKING RULES  ‑‑Table of Contents

397.1              Application of the rules in this part.

397.2              Compliance with Federal motor carrier safety regulations.

397.3              State and local laws, ordinances, and regulations.

397.5              Attendance and surveillance of motor vehicles.

397.7              Parking.

397.11            Fires.

397.13            Smoking.

397.15            Fueling.

397.17            Tires.

397.19            Instructions and documents.

397.61            Purpose and scope.

397.63            Applicability.

397.65            Definitions.

397.67            Motor carrier responsibility for routing.

397.69            Highway routing designations; preemption.

397.71            Federal standards.

397.73            Public information and reporting requirements.

397.75            Dispute resolution.

397.77            Judicial review of dispute decision.

397.101          Requirements for motor carriers and drivers.

397.103          Requirements for State routing designations.

397.201          Purpose and scope of the procedures.

397.203          Standards for determining preemption.

397.205          Preemption application.

397.207          Preemption notice.

397.209          Preemption processing.

397.211          Preemption determination.

397.213          Waiver of preemption application.

397.215          Waiver notice.

397.217          Waiver processing.

397.219          Waiver determination and order.

397.221          Timeliness.

397.223          Petition for reconsideration.

397.225          Judicial review.

 


                                  SELECTED  EPA  REGULATIONS

 

40 CFR 355--EMERGENCY PLANNING AND NOTIFICATION

 

355.10  Purpose.

    This regulation establishes the list of extremely hazardous substances, threshold planning quantities, and facility notification responsibilities necessary for the development and implementation of State and local emergency response plans.

 

Sec. 355.20  Definitions.

    Act means the Superfund Amendments and Reauthorization Act of 1986.

    CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

    CERCLA Hazardous Substance means a substance on the list defined in section 101(14) of CERCLA.

    Note: Listed CERCLA hazardous substances appear in table 302.4 of 40 CFR part 302.

    Chief Executive Officer of the tribe means the person who is recognized by the Bureau of Indian Affairs as the chief elected administrative officer of the tribe.

    Commission means the emergency response commission for the State in which the facility is located except where the facility is located in Indian Country, in which case, commission means the emergency response commission for the tribe under whose jurisdiction the facility is located. In absence of an emergency response commission, the Governor and the chief executive officer, respectively, shall be the commission. Where there is a cooperative agreement between a State and a Tribe, the commission shall be the entity identified in the agreement.

    Committee or Local emergency planning committee means the local emergency planning committee appointed by the emergency response commission.

    Environment includes water, air, and land and the interrelationship which exists among and between water, air, and land and all living things.

    Extremely hazardous substance means a substance listed in appendices A and B of this part.

    Facility means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). Facility shall include manmade structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

    Hazardous chemical means any hazardous chemical as defined under Sec. 1910.1200(c) of Title 29 of the Code of Federal Regulations, except that such term does not include the following substances:

    (1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.

    (2) 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.

    (3) 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 general public.

    (4) 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.

   (5) 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 customer.

    Indian Country means Indian country as defined in 18 U.S.C. 1151. That section defines Indian country as:

    (a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;

    (b) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and

    (c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

    Indian tribe means those tribes federally recognized by the Secretary of the Interior.

    Mixture means a heterogenous association of substances where the various individual substances retain their identities and can usually be separated by mechanical means. Includes solutions or compounds but does not include alloys or amalgams.

    Person means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or interstate body.

    Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any hazardous chemical, extremely hazardous substance, or CERCLA hazardous substance.

    Reportable quantity means, for any CERCLA hazardous substance, the reportable quantity established in table 302.4 of 40 CFR part 302, for such substance, for any other substance, the reportable quantity is one pound.

    State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, any other territory or possession over which the United States has jurisdictions and Indian Country.

    Threshold planning quantity means, for a substance listed in appendices A and B, the quantity listed in the column ``threshold planning quantity'' for that substance.

[52 FR 13395, Apr. 22, 1987; 54 FR 38853, Sept. 21, 1989, as amended at 55 FR 30645, July 26, 1990]

 

Sec. 355.30  Emergency planning.


    (a) Applicability. The requirements of this section apply to any facility at which there is present an amount of any extremely hazardous substance equal to or in excess of its threshold planning quantity, or designated, after public notice and opportunity for comment, by the Commission or the Governor for the State in which the facility is located. For purposes of this section, an amount of any extremely hazardous substance means the total amount of an extremely hazardous substance present at any one time at a facility at concentrations greater than one percent by weight, regardless of location, number of containers, or method of storage.

    (b) Emergency planning notification. The owner or operator of a facility subject to this section shall provide notification to the Commission that it is a facility subject to the emergency planning requirements of this part. Such notification shall be provided: on or before May 17, 1987 or within sixty days after a facility first becomes subject to the requirements of this section, whichever is later.

    (c) Facility emergency coordinator. The owner or operator of a facility subject to this section shall designate a facility representative who will participate in the local emergency planning process as a facility emergency response coordinator. The owner or operator shall notify the local emergency planning committee (or the Governor if there is no committee) of the facility representative on or before September 17, 1987 or 30 days after establishment of a local emergency planning committee, whichever is earlier.

    (d) Provision of information. (1) The owner or operator of a facility subject to this section shall inform the local emergency planning committee of any changes occurring at the facility which may be relevant to emergency planning.

    (2) Upon request of the local emergency planning committee, the owner or operator of a facility subject to this section shall promptly provide to the committee any information necessary for development or implementation of the local emergency plan.

    (e) Calculation of TPQs for solids and mixtures. (1) If a container or storage vessel holds a mixture or solution of an extremely hazardous substance, then the concentration of extremely hazardous substance, in weight percent (greater than 1 percent sign), shall be multiplied by the mass (in pounds) in the vessel to determine the actual quantity of extremely hazardous substance therein.

    (2)(i) Extremely hazardous substances that are solids are subject to either of two threshold planning quantities as shown on appendices A and B (i.e., 500/10,000 pounds). The lower quantity applies only if the solid exists in powdered form and has a particle size less than 100 microns; or is handled in solution or in molten form; or meets the criteria for a National Fire Protection Association (NFPA) rating of 2, 3 or 4 for reactivity. If the solid does not meet any of these criteria, it is subject to the upper (10,000 pound) threshold planning quantity as shown in appendices A and B.

    (ii) The 100 micron level may be determined by multiplying the weight percent of solid with a particle size less than 100 microns in a particular container by the quantity of solid in the container.

    (iii) The amount of solid in solution may be determined by multiplying the weight percent of solid in the solution in a particular container by the quantity of solution in the container.

    (iv) The amount of solid in molten form must be multiplied by 0.3 to determine whether the lower threshold planning quantity is met.

 


Sec. 355.40  Emergency release notification.

    (a) Applicability. (1) The requirements of this section apply to any facility: (i) at which a hazardous chemical is produced, used or stored and (ii) at which there is release of a reportable quantity of any extremely hazardous substance or CERCLA hazardous substance.

    (2) This section does not apply to:

    (i) Any release which results in exposure to persons solely within the boundaries of the facility;

    (ii) Any release which is a federally permitted release as defined in section 101 (10) of CERCLA;

    (iii) Any release that is continuous and stable in quantity and rate under the definitions in 40 CFR 302.8(b). Exemption from notification under this subsection does not include exemption from:

    (A) Initial notifications as defined in 40 CFR 302.8 (d) and (e);

    (B) Notification of a ``statistically significant increase,'' defined in 40 CFR 302.8(b) as any increase above the upper bound of the reported normal range, which is to be submitted to the community emergency coordinator for the local emergency planning committee for any area likely to be affected by the release and to the State emergency response commission of any State likely to be affected by the release;

    (C) Notification of a ``new release'' as defined in 40 CFR 302.8(g)(1); or

    (D) Notification of a change in the normal range of the release as required under 40 CFR 302.8(g)(2).

    (iv) Any release of a pesticide product exempt from CERCLA section 103(a) reporting under section 103(e) of CERCLA;

    (v) Any release not meeting the definition of release under Section 101(22) of CERCLA, and therefore exempt from Section 103(a) reporting; and

    (vi) Any radionuclide release which occurs:

    (A) Naturally in soil from land holdings such as parks, golf courses, or other large tracts of land.

    (B) Naturally from land disturbance activities, including farming, construction, and land disturbance incidental to extraction during mining activities, except that which occurs at uranium, phosphate, tin, zircon, hafnium, vanadium, monazite, and rare earth mines. Land disturbance incidental to extraction includes: land clearing; overburden removal and stockpiling; excavating, handling, transporting, and storing ores and other raw materials; and replacing materials in mined‑out areas as long as such materials have not been beneficiated or processed and do not contain elevated radionuclide concentrations (greater than 7.6 picocuries per gram or pCi/g of Uranium‑238, 6.8 pCi/g of Thorium‑232, or 8.4 pCi/g of Radium‑226).

    (C) From the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses.

    (D) From piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.


    Note to paragraph (a): Releases of CERCLA hazardous substances are subject to the release reporting requirements of CERCLA section 103, codified at 40 CFR part 302, in addition to the requirements of this part.

    (b) Notice requirements. (1) The owner or operator of a facility subject to this section shall immediately notify the community emergency coordinator for the local emergency planning committee of any area likely to be affected by the release and the State emergency response commission of any State likely to be affected by the release. If there is no local emergency planning committee, notification shall be provided under this section to relevant local emergency response personnel.

    (2) The notice required under this section shall include the following to the extent known at the time of notice and so long as no delay in notice or emergency response results:

    (i) The chemical name or identity of any substance involved in the release.

    (ii) An indication of whether the substance is an extremely hazardous substance.

    (iii) An estimate of the quantity of any such substance that was released into the environment.

    (iv) The time and duration of the release.

    (v) The medium or media into which the release occurred.

    (vi) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.

    (vii) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordination pursuant to the emergency plan).

    (viii) The names and telephone number of the person or persons to be contacted for further information.

    (3) As soon as practicable after a release which requires notice under (b)(1) of this section, such owner or operator shall provide a written follow‑up emergency notice (or notices, as more information becomes available) setting forth and updating the information required under paragraph (b)(2) of this section, and including additional information with respect to:

    (i) Actions taken to respond to and contain the release,

    (ii) Any known or anticipated acute or chronic health risks associated with the release, and,

    (iii) Where appropriate, advice regarding medical attention necessary for exposed individuals.

    (4) Exceptions. (i) Until April 30, 1988, in lieu of the notice specified in paragraph (b)(2) of this section, any owner or operator of a facility subject to this section from which there is a release of a CERCLA hazardous substance which is not an extremely hazardous substance and has a statutory reportable quantity may provide the same notice required under CERCLA section 103(a) to the local emergency planning committee.


    (ii) An owner or operator of a facility from which there is a transportation‑related release may meet the requirements of this section by providing the information indicated in paragraph (b)(2) to the 911 operator, or in the absence of a 911 emergency telephone number, to the operator. For purposes of this paragraph, a transportation‑related release means a release during transportation, or storage incident to transportation if the stored substance is moving under active shipping papers and has not reached the ultimate consignee.

[52 FR 13395, Apr. 22, 1987, as amended at 54 FR 22543, May 24, 1989; 55 FR 30188, July 24, 1990; 63 FR 13475, Mar. 19, 1998]

 

Sec. 355.50  Penalties.

    (a) Civil penalties. Any person who fails to comply with the requirements of Sec. 355.40 shall be subject to civil penalties of up to $25,000 for each violation in accordance with section

325(b)(1) of the Act.

    (b) Civil penalties for continuing violations. Any person who fails to comply with the requirements of Sec. 355.40 shall be subject to civil penalties of up to $25,000 for each day during which the violation continues, in accordance with section 325(b)(2) of the Act. In the case

of a second or subsequent violation, any such person may be subject to civil penalties of up to $75,000 for each day the violation continues, in accordance with section 325(b)(2) of the Act.

    (c) Criminal penalties. Any person who knowingly and willfully fails to provide notice in accordance with Sec. 355.40 shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than two (2) years, or both (or, in the case of a second or subsequent conviction, shall be fined not more than $50,000 or imprisoned for not more than five (5) years, or both) in accordance with section 325(b)(4) of the Act.

 

Appendix A to Part 355–The List of Extremely Hazardous Substances and Their Threshold Planning Quantities [Alphabetical Order] -- (Omitted)

Appendix B to Part 355‑‑The List of Extremely Hazardous Substances and             Their Threshold Planning Quantities [CAS Number Order] -- (Omitted)

 

40 CFR 370  HAZARDOUS CHEMICAL REPORTING: COMMUNITY RIGHT‑TO‑KNOW

 

370.1  Purpose.

    These regulations establish reporting requirements which provide the public with important information on the hazardous chemicals in their communities for the purpose of enhancing community awareness of chemical hazards and facilitating development of State and local emergency response plans.

 

370.2  Definitions.

    Chief Executive Officer of the tribe means the person who is recognized by the Bureau of Indian Affairs as the chief elected administrative officer of the tribe.


    Commission means the emergency response commission for the State in which the facility is located except where the facility is located in Indian Country, in which case, commission means the emergency response commission for the Tribe under whose jurisdiction the facility is located. In absence of an emergency response commission, the Governor and the chief executive officer, respectively, shall be the commission. Where there is a cooperative agreement between a State and a Tribe, the commission shall be the entity identified in the agreement.

    Committee or local emergency planning committee means the local emergency planning committee appointed by the emergency response commission.

    Environment includes water, air, and land and the interrelationship that exists among and between water, air, and land and all living things.

    Extremely hazardous substance means a substance listed in the appendices to 40 CFR part 355, Emergency Planning and Notification.

    Facility means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). Facility shall include manmade structures as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

    Hazard category means any of the following:

    (1) Immediate (acute) health hazard, including highly toxic, toxic, irritant, sensitizer, corrosive, (as defined under Sec. 1910.1200 of Title 29 of the Code of Federal Regulations) and other hazardous chemicals that cause an adverse effect to a target organ and which effect usually occurs rapidly as a result of short term exposure and is of short duration;

    (2) Delayed (chronic) health hazard, including carcinogens (as defined under Sec. 1910.1200 of Title 29 of the Code of Federal Regulations) and other hazardous chemicals that cause an adverse effect to a target organ and which effect generally occurs as a result of long term exposure and is of long duration;

    (3) Fire hazard, including flammable, combustible liquid, pyrophoric, and oxidizer (as defined under Sec. 1910.1200 of Title 29 of the Code of Federal Regulations);

    (4) Sudden release of pressure, including explosive and compressed gas (as defined under Sec. 1910.1200 of Title 29 of the Code of Federal Regulations); and

    (5) Reactive, including unstable reactive, organic peroxide, and water reactive (as defined under Sec. 1910.1200 of Title 29 of the Code of Federal Regulations).

    Hazardous chemical means any hazardous chemical as defined under Sec. 1910.1200(c) of Title 29 of the Code of Federal Regulations, except that such term does not include the following substances:

    (1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.

    (2) 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.

    (3) 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 general public.

    (4) 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.


    (5) 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 customer.

    Indian Country means Indian country as defined in 18 U.S.C. 1151. That section defines Indian country as:

    (a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights‑of‑way running through the reservation;

    (b) All dependent Indian communities within the border of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and

    (c) All Indian allotments, the Indian titles to which have not been extinguished, including rights‑of‑way running through the same.

    Indian tribe means those tribes federally recognized by the Secretary of the Interior.

    Inventory form means the Tier I and Tier II emergency and hazardous chemical inventory forms set forth in subpart D of this part.

    Material Safety Data Sheet or MSDS means the sheet required to be developed under Sec. 1910.1200(g) of Title 29 of the Code of Federal Regulations.

    Person means any individual, trust, firm, joint stock company, corporation (including a government corporation),

partnership, association, State, municipality, commission, political subdivision of State, or interstate body.

    Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is

intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public.

    State means any State of United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction and Indian Country.

    TPQ means the threshold planning quantity for an extremely hazardous substance as defined in 40 CFR part 355.

[52 FR 38364, Oct. 15, 1987, as amended at 55 FR 30645, July 26, 1990]

 

Sec. 370.5  Penalties.

    (a) MSDA reporting. Any person other than a governmental entity who violates any requirement of Sec. 370.21 shall be liable for civil and administrative penalties of not more than $10,000 for each violation.

    (b) Inventory reporting. Any person other than a governmental entity who violates any requirement of Sec. 370.25 shall be liable for civil and administrative penalties of not more than $25,000 for each violation.

    (c) Continuing violations. Each day a violation described in paragraph (a) or (b) of this section continues shall constitute a separate violation.


Sec. 370.20  Applicability.

    (a) General. The requirements of this subpart apply to any facility that is required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act.

    (b) Minimum threshold levels. Except as provided in paragraph (b)(3) of this section, the minimum threshold level for reporting under this subpart shall be as specified in paragraphs (b)(1) and (b)(2) of this section.

    (1) The owner or operator of a facility subject to this subpart shall submit an MSDS on or before October 17, 1990 (or within three months after the facility first becomes subject to this subpart), for all hazardous chemicals present at the facility at any one time in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.) and for all extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs.‑‑approximately 55 gallons) or the TPQ, whichever is lower.

    (2) The owner or operator of a facility subject to this subpart shall submit the Tier I form (or Tier II form) on or before March 1, 1991 (or March 1 of the first year after the facility first becomes a subject to this subpart), and annually thereafter, covering all hazardous chemicals present at a facility at any one time during the preceding calendar year in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.) and extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs.‑‑approximately 55 gallons) or the TPQ, whichever is lower.

    (3) The minimum threshold for reporting in response to requests for submission of an MSDS or a Tier II form under Secs. 370.21(d) and 370.25(c) of this part shall be zero.

[55 FR 30646, July 26, 1990]

 

Sec. 370.21  MSDS reporting.

    (a) Basic requirement. The owner or operator of a facility subject to this subpart shall submit an MSDS for each hazardous chemical present at the facility according to the minimum threshold schedule provided in paragraph (b) of Sec. 370.20 to the committee, the commission, and the fire department with jurisdiction over the facility.

    (b) Alternative reporting. In lieu of the submission of an MSDS for each hazardous chemical under paragraph (a) of this section, the owner or operator may submit the following:

    (1) A list of the hazardous chemicals for which the MSDS is required, grouped by hazard category as defined under Sec. 370.2 of this part;

    (2) The chemical or common name of each hazardous chemical as provided on the MSDS; and

    (3) Except for reporting of mixtures under Sec. 370.28(a)(2), any hazardous component of each hazardous chemical as provided on the MSDS.

    (c) Supplemental reporting. (1) The owner or operator of a facility that has submitted an MSDS under this section shall provide a revised MSDS to the committee, the commission, and the fire department with jurisdiction over the facility within three months after discovery of significant new information concerning the hazardous chemical for which the MSDS was submitted.


    (2) After October 17, 1987, the owner or operator of a facility subject to this section shall submit an MSDS for a hazardous chemical pursuant to paragraph (a) of this section or a list pursuant to paragraph (b) of this section within three months after the owner or operator is first required to prepare or have available the MSDS or after a hazardous chemical requiring an MSDS becomes present in an amount exceeding the threshold established in Sec. 370.20(b).

    (d) Submission of MSDS upon request. The owner or operator of a facility that has not submitted the MSDS for a hazardous chemical present at the facility shall submit the MSDS for any such hazardous chemical to the committee upon its request. The MSDS shall be submitted within 30 days of the receipt of such request.

 

Sec. 370.25  Inventory reporting.

    (a) Basic requirement. The owner or operator of a facility subject to this subpart shall submit an inventory form to the commission, the committee, and the fire department with jurisdiction over the facility. The inventory form containing Tier I information on hazardous chemicals present at the facility during the preceding calendar year above the threshold levels established in Sec. 370.20(b) shall be submitted on or before March 1 of each year, beginning in 1988.

    (b) Alternative reporting. With respect to any specific hazardous chemical at the facility, the owner or operator may submit a Tier II form in lieu of the Tier I information.

    (c) Submission of Tier II information. The owner or operator of a facility subject to this section shall submit the Tier II form to the commission, committee, or the fire department having jurisdiction over the facility upon request of such persons. The Tier II form shall be submitted within 30 days of the receipt of each request.

    (d) Fire department inspection. The owner or operator of a facility that has submitted an inventory form under this section shall allow on‑site inspection by the fire department having jurisdiction over the facility upon request of the department, and shall provide to the department specific location information on hazardous chemicals at the facility.

 

370.28  Mixtures.

    (a) Basic reporting. The owner or operator of a facility may meet the reporting requirements of Secs. 370.21 (MSDS reporting) and 370.25 (inventory form reporting) of this subpart for a hazardous chemical that is a mixture of hazardous chemicals by:

    (1) Providing the required information on each component in the mixture which is a hazardous chemical; or

    (2) Providing the required information on the mixture itself, so long as the reporting of mixtures by a facility under Sec. 370.25 is in the same manner as under Sec. 370.21, where practicable.

    (b) Calculation of the quantity. (1) If the reporting is on each component of the mixture which is a hazardous chemical, then the concentration of the hazardous chemical, in weight percent (greater than 1% or 0.1% if carcinogenic) shall be multiplied by the mass (in pounds) of the mixture to determine the quantity of the hazardous chemical in the mixture.


    (2) If the reporting is on the mixture itself, the total quantity of the mixture shall be reported.

    (c) Aggregation of extremely hazardous substances. (1) To determine whether the reporting threshold for an extremely hazardous substance has been equaled or exceeded, the owner or operator of a facility shall aggregate the following:

    (i) The quantity of the extremely hazardous substance present as a component in all mixtures at the facility, and

    (ii) All other quantities of the extremely hazardous substance present at the facility.

 

If the aggregate quantity of an extremely hazardous substance equals or exceeds the reporting threshold, the substance shall be reported.

    (2) If extremely hazardous substances are being reported and are components of a mixture at a facility, the owner or operator of a facility may report either:

    (i) The mixture, as a whole, even if the total quantity of the mixture is below its reporting threshold; or

    (ii) The extremely hazardous substance component(s) of the mixture.

[55 FR 30646, July 26, 1990]

 

370.30  Requests for information.

    (a) Request for MSDS information. (1) Any person may obtain an MSDS with respect to a specific facility by submitting a written request to the committee.

    (2) If the committee does not have in its possession the MSDS requested in paragraph (a)(1) of this section, it shall request a submission of the MSDS from the owner or operator of the facility that is the subject of the request.

    (b) Requests for Tier II information. (1) Any person may request Tier II information with respect to a specific facility by submitting a written request to the commission or committee in accordance with the requirements of this section.

    (2) If the committee or commission does not have in its possession the Tier II information requested in paragraph (b)(1) of this section, it shall request a submission of the Tier II form from the owner or operator of the facility that is the subject of the request, provided that the request is from a State or local official acting in his or her official capacity or the request is limited to hazardous chemicals stored at the facility in an amount in excess of 10,000 pounds.

    (3) If the request under paragraph (b)(1) of this section does not meet the requirements of paragraph (b)(2) of this section, the committee or commission may request submission of the Tier II form from the owner or operator of the facility that is the subject of the request if the request under paragraph (b)(1) of this section includes a general statement of need.

 

Sec. 370.31  Provision of information.

    All information obtained from an owner or operator in response to a request under this subpart and any requested Tier II form or MSDS otherwise in possession of the commission or the committee shall be made available to the person submitting the request under this subpart; provided upon request of the owner or operator, the commission or committee shall withhold from disclosure the location of any specific chemical identified in the Tier II form.


 

Subpart D‑‑Inventory Forms

This Subpart contains the Tier I and Tier II forms along with instructions for their preparation.  Subpart D is not included in this document.

 

                                 SELECTED  OSHA  REGULATIONS

 

29 CFR 1910.38  Employee emergency plans and fire prevention plans.

    (a) Emergency action plan‑‑(1) Scope and application. This paragraph (a) applies to all emergency action plans required by a particular OSHA standard. The emergency action plan shall be in writing (except as provided in the last sentence of paragraph (a)(5)(iii) of this section) and shall cover those designated actions employers and employees must take to ensure employee safety from fire and other emergencies.

    (2) Elements. The following elements, at a minimum, shall be included in the plan:

    (i) Emergency escape procedures and emergency escape route assignments;

    (ii) Procedures to be followed by employees who remain to operate critical plant operations before they evacuate;

    (iii) Procedures to account for all employees after emergency evacuation has been completed;

    (iv) Rescue and medical duties for those employees who are to perform them;

    (v) The preferred means of reporting fires and other emergencies; and

    (vi) Names or regular job titles of persons or departments who can be contacted for further information or explanation of duties under the plan.

    (3) Alarm system. (i) The employer shall establish an employee alarm system which complies with Sec. 1910.165.

    (ii) If the employee alarm system is used for alerting fire brigade members, or for other purposes, a distinctive signal for each purpose shall be used.

    (4) Evacuation. The employer shall establish in the emergency action plan the types of evacuation to be used in emergency circumstances.

    (5) Training. (i) Before implementing the emergency action plan, the employer shall designate and train a sufficient number of persons to assist in the safe and orderly emergency evacuation of employees.

    (ii) The employer shall review the plan with each employee covered by the plan at the following times:

    (A) Initially when the plan is developed,

    (B) Whenever the employee's responsibilities or designated actions under the plan change, and

    (C) Whenever the plan is changed.

    (iii) The employer shall review with each employee upon initial assignment those parts of the plan which the employee must know to protect the employee in the event of an emergency. The written plan shall be kept at the workplace and made available for employee review. For those employers with 10 or fewer employees the plan may be communicated orally to employees and the employer need not maintain a written plan.


    (b) Fire prevention plan‑‑(1) Scope and application. This paragraph (b) applies to all fire prevention plans required by a particular OSHA standard. The fire prevention plan shall be in writing, except as provided in the last sentence of paragraph (b)(4)(ii) of this section.

    (2) Elements. The following elements, at a minimum, shall be included in the fire prevention plan:

    (i) A list of the major workplace fire hazards and their proper handling and storage procedures, potential ignition sources (such as welding, smoking and others) and their control procedures, and the type of fire protection equipment or systems which can control a fire involving them;

    (ii) Names or regular job titles of those personnel responsible for maintenance of equipment and systems installed to prevent or control ignitions or fires; and

    (iii) Names or regular job titles of those personnel responsible for control of fuel source hazards.

    (3) Housekeeping. The employer shall control accumulations of flammable and combustible waste materials and residues so that they do not contribute to a fire emergency. The housekeeping procedures shall be included in the written fire prevention plan.

    (4) Training. (i) The employer shall apprise employees of the fire hazards of the materials and processes to which they are exposed.

    (ii) The employer shall review with each employee upon initial assignment those parts of the fire prevention plan which the employee must know to protect the employee in the event of an emergency. The written plan shall be kept in the workplace and made available for employee review. For those employers with 10 or fewer employees, the plan may be communicated orally to employees and the employer need not maintain a written plan.

    (5) Maintenance. The employer shall regularly and properly maintain, according to established procedures, equipment and systems installed on heat producing equipment to prevent accidental ignition of combustible materials. The maintenance procedures shall be included in the written fire prevention plan.

[45 FR 60703, Sept. 12, 1980]

 

Appendix to Part 1910, Subpart E ‑‑ Means of Egress

    This appendix serves as a nonmandatory guideline to assist employers in complying with the appropriate requirements of subpart E.

                                                                              .


    1. Emergency action plan elements. The emergency action plan should address emergencies that the employer may reasonably expect in the workplace. Examples are: fire; toxic chemical releases; hurricanes; tornadoes; blizzards; floods; and others. The elements of the emergency action plan presented in paragraph 1910.38(a)(2) can be supplemented by the following to more effectively achieve employee safety and health in an emergency. The employer should list in detail the procedures to be taken by those employees who have been selected to remain behind to care for essential plant operations until their evacuation becomes absolutely necessary. Essential plant operations may include the monitoring of plant power supplies, water supplies, and other essential services which cannot be shut down for every emergency alarm. Essential plant operations may also include chemical or manufacturing processes which must be shut down in stages or steps where certain employees must be present to assure that safe shut down procedures are completed.

    The use of floor plans or workplace maps which clearly show the emergency escape routes should be included in the emergency action plan. Color coding will aid employees in determining their route assignments.

    The employer should also develop and explain in detail what rescue and medical first aid duties are to be performed and by whom. All employees are to be told what actions they are to take in these emergency situations that the employer anticipates may occur in the workplace.

    2. Emergency evacuation. At the time of an emergency, employees should know what type of evacuation is necessary and what their role is in carrying out the plan. In some cases where the emergency is very grave, total and immediate evacuation of all employees is necessary. In other emergencies, a partial evacuation of nonessential employees with a delayed evacuation of others may be necessary for continued plant operation. In some cases, only those employees in the immediate area of the fire may be expected to evacuate or move to a safe area such as when a local application fire suppression system discharge employee alarm is sounded. Employees must be sure that they know what is expected of them in all such emergency possibilities which have been planned in order to provide assurance of their safety from fire or other emergency.

    The designation of refuge or safe areas for evacuation should be determined and identified in the plan. In a building divided into fire zones by fire walls, the refuge area may still be within the same building but in a different zone from where the emergency occurs.

    Exterior refuge or safe areas may include parking lots, open fields or streets which are located away from the site of the emergency and which provide sufficient space to accommodate the employees. Employees should be instructed to move away from the exit discharge doors of the building, and to avoid congregating close to the building where they may hamper emergency operations.

    3. Emergency action plan training. The employer should assure that an adequate number of employees are available at all times during working hours to act as evacuation wardens so that employees can be swiftly moved from the danger location to the safe areas. Generally, one warden for each twenty employees in the workplace should be able to provide adequate guidance and instruction at the time of a fire emergency. The employees selected or who volunteer to serve as wardens should be trained in the complete workplace layout and the various alternative escape routes from the workplace. All wardens and fellow employees should be made aware of handicapped employees who may need extra assistance, such as using the buddy system, and of hazardous areas to be avoided during emergencies. Before leaving, wardens should check rooms and other enclosed spaces in the workplace for employees who may be trapped or otherwise unable to evacuate the area.

    After the desired degree of evacuation is completed, the wardens should be able to account for or otherwise verify that all employees are in the safe areas.


    In buildings with several places of employment, employers are encouraged to coordinate their plans with the other employers in the building. A building‑wide or standardized plan for the whole building is acceptable provided that the employers inform their respective employees of their duties and responsibilities under the plan. The standardized plan need not be kept by each employer in the multi‑employer building, provided there is an accessible location within the building where the plan can be reviewed by affected employees. When multi‑employer building‑wide plans are not feasible, employers should coordinate their plans with the other employers within the building to assure that conflicts and confusion are avoided during times of emergencies. In multi‑story buildings where more than one employer is on a single floor, it is essential that these employers coordinate their plans with each other to avoid conflicts and confusion.

    4. Fire prevention housekeeping. The standard calls for the control of accumulations of flammable and combustible waste materials.

    It is the intent of this standard to assure that hazardous accumulations of combustible waste materials are controlled so that a fast developing fire, rapid spread of toxic smoke, or an explosion will not occur. This does not necessarily mean that each room has to be swept each day. Employers and employees should be aware of the hazardous properties of materials in their workplaces, and the degree of hazard each poses. Certainly oil soaked rags have to be treated differently than general paper trash in office areas. However, large accumulations of waste paper or corrugated boxes, etc., can pose a significant fire hazard. Accumulations of materials which can cause large fires or generate dense smoke that are easily ignited or may start from spontaneous combustion, are the types of materials with which this standard is concerned. Such combustible materials may be easily ignited by matches, welder's sparks, cigarettes and similar low level energy ignition sources.

    5. Maintenance of equipment under the fire prevention plan. Certain equipment is often installed in workplaces to control heat sources or to detect fuel leaks. An example is a temperature limit switch often found on deep‑fat food fryers found in restaurants. There may be similar switches for high temperature dip tanks, or flame failure and flashback arrester devices on furnaces and similar heat producing equipment. If these devices are not properly maintained or if they become inoperative, a definite fire hazard exists. Again employees and supervisors should be aware of the specific type of control devices on equipment involved with combustible materials in the workplace and should make sure, through periodic inspection or testing, that these controls are operable. Manufacturers' recommendations should be followed to assure proper maintenance procedures.    [45 FR 60714, Sept. 12, 1980]

 

29 CFR 1910.132  General requirements. (Personal Protective Equipment)

    (a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

    (b) Employee‑owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.


    (c) Design. All personal protective equipment shall be of safe design and construction for the work to be performed.

    (d) Hazard assessment and equipment selection. (1) The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall:

    (i) Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment;

    (ii) Communicate selection decisions to each affected employee; and,

    (iii) Select PPE that properly fits each affected employee.

 

    Note: Non‑mandatory Appendix B contains an example of procedures that would comply with the requirement for a hazard assessment.

 

    (2) The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a certification of hazard assessment.

    (e) Defective and damaged equipment. Defective or damaged personal protective equipment shall not be used.

    (f) Training. (1) The employer shall provide training to each employee who is required by this section to use PPE. Each such employee shall be trained to know at least the following:

    (i) When PPE is necessary;

    (ii) What PPE is necessary;

    (iii) How to properly don, doff, adjust, and wear PPE;

    (iv) The limitations of the PPE; and,

    (v) The proper care, maintenance, useful life and disposal of the PPE.

    (2) Each affected employee shall demonstrate an understanding of the training specified in paragraph (f)(1) of this section, and the ability to use PPE properly, before being allowed to perform work requiring the use of PPE.

    (3) When the employer has reason to believe that any affected employee who has already been trained does not have the understanding and skill required by paragraph (f)(2) of this section, the employer shall retrain each such employee. Circumstances where retraining is required include, but are not limited to, situations where:

    (i) Changes in the workplace render previous training obsolete; or

    (ii) Changes in the types of PPE to be used render previous training obsolete; or

    (iii) Inadequacies in an affected employee's knowledge or use of assigned PPE indicate that the employee has not retained the requisite understanding or skill.

    (4) The employer shall verify that each affected employee has received and understood the required training through a written certification that contains the name of each employee trained, the date(s) of training, and that identifies the subject of the certification.


    (g) Paragraphs (d) and (f) of this section apply only to Secs. 1910.133, 1910.135, 1919.136, and 1910.138. Parpagraphs (d) and (f) of this section do not apply to Secs. 1910.134 and 1910.137.   [39 FR 23502, June 27, 1974, as amended at 59 FR 16334, Apr. 6, 1994; 59 FR 33910, July 1, 1994]

 

29 CFR 1910.120(q)

    (q) Emerqency response to hazardous substance releases. This paragraph covers employers whose employees are engaged in emergency response no matter where it occurs except that it does not cover employees engaged in operations specified in paragraphs (a)(1)(i) through (a)(1)(iv) of this section. Those emergency response organizations who have developed and implemented programs equivalent to this paragraph for handling releases of hazardous substances pursuant to section 303 of the Superfund Amendments and Reauthorization Act of 1986 (Emergency Planning and Community Right‑to‑Know Act of 1986, 42 U.S.C. 11003) shall be deemed to have met the requirements of this paragraph.

    (1) Emergency response plan. An emergency response plan shall be developed and implemented to handle anticipated emergencies prior to the commencement of emergency response operations. The plan shall be in writing and available for inspection and copying by employees, their representatives and OSHA personnel. Employers who will evacuate their employees from the danger area when an emergency occurs, and who do not permit any of their employees to assist in handling the emergency, are exempt from the requirements of this paragraph if they provide an emergency action plan in accordance with Sec. 1910.38(a) of this part.

    (2) Elements of an emergency response plan. The employer shall develop an emergency response plan for emergencies which shall address, as a minimum, the following to the extent that they are not addressed elsewhere:

    (i) Pre‑emergency planning and coordination with outside parties.

    (ii) Personnel roles, lines of authority, training, and communication.

    (iii) Emergency recognition and prevention.

    (iv) Safe distances and places of refuge.

    (v) Site security and control.

    (vi) Evacuation routes and procedures.

    (vii) Decontamination.

    (viii) Emergency medical treatment and first aid.

    (ix) Emergency alerting and response procedures.

    (x) Critique of response and follow‑up.

    (xi) PPE and emergency equipment.

    (xii) Emergency response organizations may use the local emergency response plan or the state emergency response plan or both, as part of their emergency response plan to avoid duplication. Those items of the emergency response plan that are being properly addressed by the SARA Title III plans may be substituted into their emergency plan or otherwise kept together for the employer and employee's use.


    (3) Procedures for handling emergency response. (i) The senior emergency response official responding to an emergency shall become the individual in charge of a site‑specific Incident Command System (ICS). All emergency responders and their communications shall be coordinated and controlled through the individual in charge of the ICS assisted by the senior official present for each employer.

 

    Note to (q)(3)(i).‑‑The ``senior official'' at an emergency response is the most senior official on the site who has the responsibility for controlling the operations at the site. Initially it is the senior officer on the first‑due piece of responding emergency apparatus to arrive on the incident scene. As more senior officers arrive (i.e., battalion chief, fire chief, state law enforcement official, site coordinator, etc.) the position is passed up the line of authority which has been previously established.

 

    (ii) The individual in charge of the ICS shall identify, to the extent possible, all hazardous substances or conditions present and shall address as appropriate site analysis, use of engineering controls, maximum exposure limits, hazardous substance handling procedures, and use of any new technologies.

    (iii) Based on the hazardous substances and/or conditions present, the individual in charge of the ICS shall implement appropriate emergency operations, and assure that the personal protective equipment worn is appropriate for the hazards to be encountered. However, personal protective equipment shall meet, at a minimum, the criteria contained in 29 CFR 1910.156(e) when worn while performing fire fighting operations beyond the incipient stage for any incident.

    (iv) Employees engaged in emergency response and exposed to hazardous substances presenting an inhalation hazard or potential inhalation hazard shall wear positive pressure self‑contained breathing apparatus while engaged in emergency response, until such time that the individual in charge of the ICS determines through the use of air monitoring that a decreased level of respiratory protection will not result in hazardous exposures to employees.

    (v) The individual in charge of the ICS shall limit the number of emergency response personnel at the emergency site, in those areas of potential or actual exposure to incident or site hazards, to those who are actively performing emergency operations. However, operations in hazardous areas shall be performed using the buddy system in groups of two or more.

    (vi) Back‑up personnel shall stand by with equipment ready to provide assistance or rescue. Advance first aid support personnel, as a minimum, shall also stand by with medical equipment and transportation capability.

    (vii) The individual in charge of the ICS shall designate a safety official, who is knowledgeable in the operations being implemented at the emergency response site, with specific responsibility to identify and evaluate hazards and to provide direction with respect to the safety of operations for the emergency at hand.

    (viii) When activities are judged by the safety official to be an IDLH condition and/or to involve an imminent danger condition, the safety official shall have the authority to alter, suspend, or terminate those activities. The safety official shall immediately inform the individual in charge of the ICS of any actions needed to be taken to correct these hazards at the emergency scene.

    (ix) After emergency operations have terminated, the individual in charge of the ICS shall implement appropriate decontamination procedures.


    (x) When deemed necessary for meeting the tasks at hand, approved self‑contained compressed air breathing apparatus may be used with approved cylinders from other approved self‑contained compressed air breathing apparatus provided that such cylinders are of the same capacity and pressure rating. All compressed air cylinders used with self‑contained breathing apparatus shall meet U.S. Department of Transportation and National Institute for Occupational Safety and Health criteria.

    (4) Skilled support personnel. Personnel, not necessarily an employer's own employees, who are skilled in the operation of certain equipment, such as mechanized earth moving or digging equipment or crane and hoisting equipment, and who are needed temporarily to perform immediate emergency support work that cannot reasonably be performed in a timely fashion by an employer's own employees, and who will be or may be exposed to the hazards at an emergency response scene, are not required to meet the training required in this paragraph for the employer's regular employees. However, these personnel shall be given an initial briefing at the site prior to their participation in any emergency response. The initial briefing shall include instruction in the wearing of appropriate personal protective equipment, what chemical hazards are involved, and what duties are to be performed. All other appropriate safety and health precautions provided to the employer's own employees shall be used to assure the safety and health of these personnel.

    (5) Specialist employees. Employees who, in the course of their regular job duties, work with and are trained in the hazards of specific hazardous substances, and who will be called upon to provide technical advice or assistance at a hazardous substance release incident to the individual in charge, shall receive training or demonstrate competency in the area of their specialization annually.

    (6) Training. Training shall be based on the duties and function to be performed by each responder of an emergency response organization. The skill and knowledge levels required for all new responders, those hired after the effective date of this standard, shall be conveyed to them through training before they are permitted to take part in actual emergency operations on an incident. Employees who participate, or are expected to participate, in emergency response, shall be given training in accordance with the following paragraphs:

    (i) First responder awareness level. First responders at the awareness level are individuals who are likely to witness or discover a hazardous substance release and who have been trained to initiate an emergency response sequence by notifying the proper authorities of the release. They would take no further action beyond notifying the authorities of the release. First responders at the awareness level shall have sufficient training or have had sufficient experience to objectively demonstrate competency in the following areas:

    (A) An understanding of what hazardous substances are, and the risks associated with them in an incident.

    (B) An understanding of the potential outcomes associated with an emergency created when hazardous substances are present.

    (C) The ability to recognize the presence of hazardous substances in an emergency.

    (D) The ability to identify the hazardous substances, if possible.


   (E) An understanding of the role of the first responder awareness individual in the employer's emergency response plan including site security and control and the U.S. Department of Transportation's Emergency Response Guidebook.

    (F) The ability to realize the need for additional resources, and to make appropriate notifications to the communication center.

    (ii) First responder operations level. First responders at the operations level are individuals who respond to releases or potential releases of hazardous substances as part of the initial response to the site for the purpose of protecting nearby persons, property, or the environment from the effects of the release. They are trained to respond in a defensive fashion without actually trying to stop the release. Their function is to contain the release from a safe distance, keep it from spreading, and prevent exposures. First responders at the operational level shall have received at least eight hours of training or have had sufficient experience to objectively demonstrate competency in the following areas in addition to those listed for the awareness level and the employer shall so certify:

    (A) Knowledge of the basic hazard and risk assessment techniques.

    (B) Know how to select and use proper personal protective equipment provided to the first responder operational level.

    (C) An understanding of basic hazardous materials terms.

   (D) Know how to perform basic control, containment and/or confinement operations within the capabilities of the resources and personal protective equipment available with their unit.

    (E) Know how to implement basic decontamination procedures.

    (F) An understanding of the relevant standard operating procedures and termination procedures.

    (iii) Hazardous materials technician. Hazardous materials technicians are individuals who respond to releases or potential releases for the purpose of stopping the release. They assume a more aggressive role than a first responder at the operations level in that they will approach the point of release in order to plug, patch or otherwise stop the release of a hazardous substance. Hazardous materials technicians shall have received at least 24 hours of training equal to the first responder operations level and in addition have competency in the following areas and the employer shall so certify:

    (A) Know how to implement the employer's emergency response plan.

   (B) Know the classification, identification and verification of known and unknown materials by using field survey instruments and equipment.

    (C) Be able to function within an assigned role in the Incident Command System.

   (D) Know how to select and use proper specialized chemical personal protective equipment provided to the hazardous materials technician.

    (E) Understand hazard and risk assessment techniques.

    (F) Be able to perform advance control, containment, and/or confinement operations within the capabilities of the resources and personal protective equipment available with the unit.

    (G) Understand and implement decontamination procedures.

    (H) Understand termination procedures.

    (I) Understand basic chemical and toxicological terminology and behavior.


    (iv) Hazardous materials specialist. Hazardous materials specialists are individuals who respond with and provide support to hazardous materials technicians. Their duties parallel those of the hazardous materials technician, however, those duties require a more directed or specific knowledge of the various substances they may be called upon to contain. The hazardous materials specialist would also act as the site liaison with Federal, state, local and other government authorities in regards to site activities. Hazardous materials specialists shall have received at least 24 hours of training equal to the technician level and in addition have competency in the following areas and the employer shall so certify:

    (A) Know how to implement the local emergency response plan.

   (B) Understand classification, identification and verification of known and unknown materials by using advanced survey instruments and equipment.

    (C) Know of the state emergency response plan.

    (D) Be able to select and use proper specialized chemical personal protective equipment provided to the hazardous materials specialist.

    (E) Understand in‑depth hazard and risk techniques.

    (F) Be able to perform specialized control, containment, and/or confinement operations within the capabilities of the resources and personal protective equipment available.

    (G) Be able to determine and implement decontamination procedures.

    (H) Have the ability to develop a site safety and control plan.

    (I) Understand chemical, radiological and toxicological terminology and behavior.

    (v) On scene incident commander. Incident commanders, who will assume control of the incident scene beyond the first responder awareness level, shall receive at least 24 hours of training equal to the first responder operations level and in addition have competency in the following areas and the employer shall so certify:

    (A) Know and be able to implement the employer's incident command system.

    (B) Know how to implement the employer's emergency response plan.

    (C) Know and understand the hazards and risks associated with employees working in chemical protective clothing.

    (D) Know how to implement the local emergency response plan.

    (E) Know of the state emergency response plan and of the Federal Regional Response Team.

    (F) Know and understand the importance of decontamination procedures.

    (7) Trainers. Trainers who teach any of the above training subjects shall have satisfactorily completed a training course for teaching the subjects they are expected to teach, such as the courses offered by the U.S. National Fire Academy, or they shall have the training and/or academic credentials and instructional experience necessary to demonstrate competent instructional skills and a good command of the subject matter of the courses they are to teach.

    (8) Refresher training. (i) Those employees who are trained in accordance with paragraph (q)(6) of this section shall receive annual refresher training of sufficient content and duration to maintain their competencies, or shall demonstrate competency in those areas at least yearly.

    (ii) A statement shall be made of the training or competency, and if a statement of competency is made, the employer shall keep a record of the methodology used to demonstrate competency.


    (9) Medical surveillance and consultation. (i) Members of an organized and designated HAZMAT team and hazardous materials specialists shall receive a baseline physical examination and be provided with medical surveillance as required in paragraph (f) of this section.

    (ii) Any emergency response employees who exhibits signs or symptoms which may have resulted from exposure to hazardous substances during the course of an emergency incident, either immediately or subsequently, shall be provided with medical consultation as required in paragraph (f)(3)(ii) of this section.

    (10) Chemical protective clothing. Chemical protective clothing and equipment to be used by organized and designated HAZMAT team members, or to be used by hazardous materials specialists, shall meet the requirements of paragraphs (g) (3) through (5) of this section.

    (11) Post‑emergency response operations. Upon completion of the emergency response, if it is determined that it is necessary to remove hazardous substances, health hazards, and materials contaminated with them (such as contaminated soil or other elements of the natural environment) from the site of the incident, the employer conducting the clean‑up shall comply with one of the following:

    (i) Meet all of the requirements of paragraphs (b) through (o) of this section; or

    (ii) Where the clean‑up is done on plant property using plant or workplace employees, such employees shall have completed the training requirements of the following: 29 CFR 1910.38(a); 1910.134; 1910.1200, and other appropriate safety and health training made necessary by the tasks that they are expected to be performed such as personal protective equipment and decontamination procedures. All equipment to be used in the performance of the clean‑up work shall be in serviceable condition and shall have been inspected prior to use.

 

29 CFR 1910.151  Medical services and first aid.

    (a) The employer shall ensure the ready availability of medical personnel for advice and consultation on matters of plant health.

    (b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.

    (c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

 

Appendix A to Sec. 1910.151 ‑‑ First aid kits (Non‑Mandatory)


    First aid supplies are required to be readily available under paragraph Sec. 1910.151(b). An example of the minimal contents of a generic first aid kit is described in American National Standard (ANSI) Z308.1‑1978 ``Minimum Requirements for Industrial Unit‑Type First‑aid Kits.'' The contents of the kit listed in the ANSI standard should be adequate for small worksites. When larger operations or multiple operations are being conducted at the same location, employers should determine the need for additional first aid kits at the worksite, additional types of first aid equipment and supplies and additional quantities and types of supplies and equipment in the first aid kits.

    In a similar fashion, employers who have unique or changing first‑aid needs in their workplace may need to enhance their first‑aid kits. The employer can use the OSHA 200 log, OSHA 101's or other reports to identify these unique problems. Consultation from the local fire/rescue department, appropriate medical professional, or local emergency room may be helpful to employers in these circumstances. By assessing the specific needs of their workplace, employers can ensure that reasonably anticipated supplies are available. Employers should assess the specific needs of their worksite

periodically and augment the first aid kit appropriately.

    If it is reasonably anticipated that employees will be exposed to blood or other potentially infectious materials while using first aid supplies, employers are required to provide appropriate personal protective equipment (PPE) in compliance with the provisions of the Occupational Exposure to Blood borne Pathogens standard, Sec. 1910.1030(d)(3) (56 FR 64175). This standard lists appropriate PPE for this type of exposure, such as gloves, gowns, face shields, masks, and eye protection. 

[39 FR 23502, June 27, 1974, as amended at 63 FR 33466, June 18, 1998]

  

29 CFR 1910.165  Employee alarm systems.

    (a) Scope and application. (1) This section applies to all emergency employee alarms installed to meet a particular OSHA standard. This section does not apply to those discharge or supervisory alarms required on various fixed extinguishing systems or to supervisory alarms on fire suppression, alarm or detection systems unless they are intended to be employee alarm systems.

    (2) The requirements in this section that pertain to maintenance, testing and inspection shall apply to all local fire alarm signaling systems used for alerting employees regardless of the other functions of the system.

    (3) All pre‑discharge employee alarms installed to meet a particular OSHA standard shall meet the requirements of paragraphs (b)(1) through (4), (c), and (d)(1) of this section.

    (b) General requirements. (1) The employee alarm system shall provide warning for necessary emergency action as called for in the emergency action plan, or for reaction time for safe escape of employees from the workplace or the immediate work area, or both.

    (2) The employee alarm shall be capable of being perceived above ambient noise or light levels by all employees in the affected portions of the workplace. Tactile devices may be used to alert those employees who would not otherwise be able to recognize the audible or visual alarm.

    (3) The employee alarm shall be distinctive and recognizable as a signal to evacuate the work area or to perform actions designated under the emergency action plan.

    (4) The employer shall explain to each employee the preferred means of reporting emergencies, such as manual pull box alarms, public address systems, radio or telephones. The employer shall post emergency telephone numbers near telephones, or employee notice boards, and other conspicuous locations when telephones serve as a means of reporting emergencies. Where a communication system also serves as the employee alarm system, all emergency messages shall have priority over all non‑emergency messages.


    (5) The employer shall establish procedures for sounding emergency alarms in the workplace. For those employers with 10 or fewer employees in a particular workplace, direct voice communication is an acceptable procedure for sounding the alarm provided all employees can hear the alarm. Such workplaces need not have a back‑up system.

    (c) Installation and restoration. (1) The employer shall assure that all devices, components, combinations of devices or systems constructed and installed to comply with this standard are approved. Steam whistles, air horns, strobe lights or similar lighting devices, or tactile devices meeting the requirements of this section are considered to meet this requirement for approval.

    (2) The employer shall assure that all employee alarm systems are restored to normal operating condition as promptly as possible after each test or alarm. Spare alarm devices and components subject to wear or destruction shall be available in sufficient quantities and locations for prompt restoration of the system.

    (d) Maintenance and testing. (1) The employer shall assure that all employee alarm systems are maintained in operating condition except when undergoing repairs or maintenance.

    (2) The employer shall assure that a test of the reliability and adequacy of non‑supervised employee alarm systems is made every two months. A different actuation device shall be used in each test of a multi‑actuation device system so that no individual device is used for two consecutive tests.

    (3) The employer shall maintain or replace power supplies as often as is necessary to assure a fully operational condition. Back‑up means of alarm, such as employee runners or telephones, shall be provided when systems are out of service.

    (4) The employer shall assure that employee alarm circuitry installed after January 1, 1981, which is capable of being supervised is supervised and that it will provide positive notification to assigned personnel whenever a deficiency exists in the system. The employer shall assure that all supervised employee alarm systems are tested at least annually for reliability and adequacy.

    (5) The employer shall assure that the servicing, maintenance and testing of employee alarms are done by persons trained in the designed operation and functions necessary for reliable and safe operation of the system.

    (e) Manual operation. The employer shall assure that manually operated actuation devices for use in conjunction with employee alarms are unobstructed, conspicuous and readily accessible.

[45 FR 60713, Sept. 12, 1980]

 

29 CFR 1910.1200  Hazard communication. (Without Appendices)

    (a) Purpose. (1) The purpose of this section is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.


    (2) This occupational safety and health standard is intended to address comprehensively the issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to this subject. Evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, may include, for example, but is not limited to, provisions for: developing and maintaining a written hazard communication program for the workplace, including lists of hazardous chemicals present; labeling of containers of chemicals in the workplace, as well as of containers of chemicals being shipped to other workplaces; preparation and distribution of material safety data sheets to employees and downstream employers; and development and implementation of employee training programs regarding hazards of chemicals and protective measures. Under section 18 of the Act, no state or political subdivision of a state may adopt or enforce, through any court or agency, any requirement relating to the issue addressed by this Federal standard, except pursuant to a Federally‑approved state plan.

    (b) Scope and application. (1) This section requires chemical manufacturers or importers to assess the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. (Employers who do not produce or import chemicals need only focus on those parts of this rule that deal with establishing a workplace program and communicating information to their workers. Appendix E of this section is a general guide for such employers to help them determine their compliance obligations under the rule.)

    (2) This section applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.

    (3) This section applies to laboratories only as follows:

    (i) Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;

    (ii) Employers shall maintain any material safety data sheets that are received with incoming shipments of hazardous chemicals, and ensure that they are readily accessible during each workshift to laboratory employees when they are in their work areas;

    (iii) Employers shall ensure that laboratory employees are provided information and training in accordance with paragraph (h) of this section, except for the location and availability of the written hazard communication program under paragraph (h)(2)(iii) of this section; and,

    (iv) Laboratory employers that ship hazardous chemicals are considered to be either a chemical manufacturer or a distributor under this rule, and thus must ensure that any containers of hazardous chemicals leaving the laboratory are labeled in accordance with paragraph (f)(1) of this section, and that a material safety data sheet is provided to distributors and other employers in accordance with paragraphs (g)(6) and (g)(7) of this section.


    (4) In work operations where employees only handle chemicals in sealed containers which are not opened under normal conditions of use (such as are found in marine cargo handling, warehousing, or retail sales), this section applies to these operations only as follows:

    (i) Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;

    (ii) Employers shall maintain copies of any material safety data sheets that are received with incoming shipments of the sealed containers of hazardous chemicals, shall obtain a material safety data sheet as soon as possible for sealed containers of hazardous chemicals received without a material safety data sheet if an employee requests the material safety data sheet, and shall ensure that the material safety data sheets are readily accessible during each work shift to employees when they are in their work area(s); and,

    (iii) Employers shall ensure that employees are provided with information and training in accordance with paragraph (h) of this section (except for the location and availability of the written hazard communication program under paragraph (h)(2)(iii) of this section), to the extent necessary to protect them in the event of a spill or leak of a hazardous chemical from a sealed container.

    (5) This section does not require labeling of the following chemicals:

    (i) Any pesticide as such term is defined in the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Environmental Protection Agency;

    (ii) Any chemical substance or mixture as such terms are defined in the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Environmental Protection Agency.

    (iii) Any food, food additive, color additive, drug, cosmetic, or medical or veterinary device or product, including materials intended for use as ingredients in such products (e.g. flavors and fragrances), as such terms are defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or the Virus‑Serum‑Toxin Act of 1913 (21 U.S.C. 151 et seq.), and regulations issued under those Acts, when they are subject to the labeling requirements under those Acts by either the Food and Drug Administration or the Department of Agriculture;

    (iv) Any distilled spirits (beverage alcohols), wine, or malt beverage intended for nonindustrial use, as such terms are defined in the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.) and regulations issued under that Act, when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Bureau of Alcohol, Tobacco, and Firearms;

    (v) Any consumer product or hazardous substance as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, when subject to a consumer product safety standard or labeling requirement of those Acts, or regulations issued under those Acts by the Consumer Product Safety Commission; and,


    (vi) Agricultural or vegetable seed treated with pesticides and labeled in accordance with the Federal Seed Act (7 U.S.C. 1551 et seq.) and the labeling regulations issued under that Act by the Department of Agriculture.

    (6) This section does not apply to: (i) Any hazardous waste as such term is defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901 et seq.), when subject to regulations issued under that Act by the Environmental Protection Agency;

    (ii) Any hazardous substance as such term is defined by the Comprehensive Environmental Response, Compensation and Liability ACT (CERCLA) (42 U.S.C. 9601 et seq.) when the hazardous substance is the focus of remedial or removal action being conducted under CERCLA in accordance with Environmental Protection Agency regulations;

    (iii) Tobacco or tobacco products;

    (iv) Wood or wood products, including lumber which will not be processed, where the chemical manufacturer or importer can establish that the only hazard they pose to employees is the potential for flammability or combustibility (wood or wood products which have been treated with a hazardous chemical covered by this standard, and wood which may be subsequently sawed or cut, generating dust, are not exempted);

    (v) Articles (as that term is defined in paragraph (c) of this section);

  (vi) Food or alcoholic beverages which are sold, used, or prepared in a retail establishment (such as a grocery store, restaurant, or drinking place), and foods intended for personal consumption by employees while in the workplace;

    (vii) Any drug, as that term is defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), when it is in solid, final form for direct administration to the patient (e.g., tablets or pills); drugs which are packaged by the chemical manufacturer for sale to consumers in a retail establishment (e.g., over‑the‑counter drugs); and drugs intended for personal consumption by employees while in the workplace (e.g., first aid supplies);

    (viii) Cosmetics which are packaged for sale to consumers in a retail establishment, and cosmetics intended for personal consumption by employees while in the workplace;

    (ix) Any consumer product or hazardous substance, as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, where the employer can show that it is used in the workplace for the purpose intended by the chemical manufacturer or importer of the product, and the use results in a duration and frequency of exposure which is not greater than the range of exposures that could reasonably be experienced by consumers when used for the purpose intended;

    (x) Nuisance particulates where the chemical manufacturer or importer can establish that they do not pose any physical or health hazard covered under this section;

    (xi) Ionizing and nonionizing radiation; and,

    (xii) Biological hazards.

    (c) Definitions.

    Article means a manufactured item other than a fluid or particle:

(i) which is formed to a specific shape or design during manufacture;


(ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees.

    Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.

    Chemical means any element, chemical compound or mixture of elements and/or compounds.

    Chemical manufacturer means an employer with a workplace where chemical(s) are produced for use or distribution.

    Chemical name means 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 a name which will clearly identify the chemical for the purpose of conducting a hazard evaluation.

    Combustible liquid means any liquid having a flashpoint at or above 100  deg.F (37.8  deg.C), but below 200  deg.F (93.3  deg.C), except any mixture having components with flashpoints of 200  deg.F (93.3  deg.C), or higher, the total volume of which make up 99 percent or more of the total volume of the mixture.

    Commercial account means an arrangement whereby a retail distributor sells hazardous chemicals to an employer, generally in large quantities over time and/or at costs that are below the regular retail price.

    Common name means any designation or identification such as code name, code number, trade name, brand name or generic name used to identify a chemical other than by its chemical name.

    Compressed gas means:

    (i) A gas or mixture of gases having, in a container, an absolute pressure exceeding 40 psi at 70  deg.F (21.1  deg.C); or

    (ii) A gas or mixture of gases having, in a container, an absolute pressure exceeding 104 psi at 130  deg.F (54.4  deg.C) regardless of the pressure at 70  deg.F (21.1  deg.C); or

    (iii) A liquid having a vapor pressure exceeding 40 psi at 100 deg.F (37.8  deg.C) as determined by ASTM D‑323‑72.

    Container means any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical. For purposes of this section, pipes or piping systems, and engines, fuel tanks, or other operating systems in a vehicle, are not considered to be containers.

    Designated representative means any individual or organization to whom an employee gives written authorization to exercise such employee's rights under this section. A recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

    Director means the Director, National Institute for Occupational Safety and Health, U.S. Department of Health and Human Services, or designee.

    Distributor means a business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to employers.


    Employee means a worker who may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies. Workers such as office workers or bank tellers who encounter hazardous chemicals only in non‑routine, isolated instances are not covered.

    Employer means a person engaged in a business where chemicals are either used, distributed, or are produced for use or distribution, including a contractor or subcontractor.

    Explosive means a chemical that causes a sudden, almost instantaneous release of pressure, gas, and heat when subjected to sudden shock, pressure, or high temperature.

    Exposure or exposed means that an employee is subjected in the course of employment to a chemical that is a physical or health hazard, and includes potential (e.g. accidental or possible) exposure.

``Subjected'' in terms of health hazards includes any route of entry (e.g. inhalation, ingestion, skin contact or absorption.)

    Flammable means a chemical that falls into one of the following categories:

    (i) Aerosol, flammable means an aerosol that, when tested by the method described in 16 CFR 1500.45, yields a flame projection exceeding 18 inches at full valve opening, or a flashback (a flame extending back to the valve) at any degree of valve opening;

    (ii) Gas, flammable means: (A) A gas that, at ambient temperature and pressure, forms a flammable mixture with air at a concentration of thirteen (13) percent by volume or less; or

    (B) A gas that, at ambient temperature and pressure, forms a range of flammable mixtures with air wider than twelve (12) percent by volume, regardless of the lower limit;

    (iii) Liquid, flammable means any liquid having a flashpoint below 100 deg.F (37.8 deg.C), except any mixture having components with flashpoints of 100 deg.F (37.8 deg.C) or higher, the total of which make up 99 percent or more of the total volume of the mixture.

    (iv) Solid, flammable means a solid, other than a blasting agent or explosive as defined in Sec. 1910.109(a), that is liable to cause fire through friction, absorption of moisture, spontaneous chemical change, or retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to create a serious hazard. A chemical shall be considered to be a flammable solid if, when tested by the method described in 16 CFR 1500.44, it ignites and burns with a self‑sustained flame at a rate greater than one‑tenth of an inch per second along its major axis.

    Flashpoint means the minimum temperature at which a liquid gives off a vapor in sufficient concentration to ignite when tested as follows:

    (i) Tagliabue Closed Tester (See American National Standard Method of Test for Flash Point by Tag Closed Tester, Z11.24‑1979 (ASTM D 56‑79)) for liquids with a viscosity of less than 45 Saybolt Universal Seconds (SUS) at 100 deg.F (37.8 deg.C), that do not contain suspended solids and do not have a tendency to form a surface film under test; or

    (ii) Pensky‑Martens Closed Tester (see American National Standard Method of Test for Flash Point by Pensky‑Martens Closed Tester, Z11.7‑1979 (ASTM D 93‑79)) for liquids with a viscosity equal to or greater than 45 SUS at 100 deg.F (37.8 deg.C), or that contain suspended solids, or that have a tendency to form a surface film under test; or

    (iii) Setaflash Closed Tester (see American National Standard Method of Test for Flash Point by Setaflash Closed Tester (ASTM D 3278‑78)).


Organic peroxides, which undergo autoaccelerating thermal decomposition, are excluded from any of the flashpoint determination methods specified above.

    Foreseeable emergency means any potential occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release of a hazardous chemical into the workplace.

    Hazardous chemical means any chemical which is a physical hazard or a health hazard.

    Hazard warning means any words, pictures, symbols, or combination thereof appearing on a label or other appropriate form of warning which convey the specific physical and health hazard(s), including target organ effects, of the chemical(s) in the container(s). (See the definitions for ``physical hazard'' and ``health hazard'' to determine the hazards which must be covered.)

    Health hazard means a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The term ``health hazard'' includes chemicals which are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents which act on the hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes. Appendix A provides further definitions and explanations of the scope of health hazards covered by this section, and Appendix B describes the criteria to be used to determine whether or not a chemical is to be considered hazardous for purposes of this standard.

    Identity means any chemical or common name which is indicated on the material safety data sheet (MSDS) for the chemical. The identity used shall permit cross‑references to be made among the required list of hazardous chemicals, the label and the MSDS.

    Immediate use means that the hazardous chemical will be under the control of and used only by the person who transfers it from a labeled container and only within the work shift in which it is transferred.

    Importer means the first business with employees within the Customs Territory of the United States which receives hazardous chemicals produced in other countries for the purpose of supplying them to distributors or employers within the United States.

    Label means any written, printed, or graphic material displayed on or affixed to containers of hazardous chemicals.

    Material safety data sheet (MSDS) means written or printed material concerning a hazardous chemical which is prepared in accordance with paragraph (g) of this section.

    Mixture means any combination of two or more chemicals if the combination is not, in whole or in part, the result of a chemical reaction.

    Organic peroxide means an organic compound that contains the bivalent ‑O‑O‑structure and which may be considered to be a structural derivative of hydrogen peroxide where one or both of the hydrogen atoms has been replaced by an organic radical.

    Oxidizer means a chemical other than a blasting agent or explosive as defined in Sec. 1910.109(a), that initiates or promotes combustion in other materials, thereby causing fire either of itself or through the release of oxygen or other gases.


    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.

    Produce means to manufacture, process, formulate, blend, extract, generate, emit, or repackage.

    Pyrophoric means a chemical that will ignite spontaneously in air at a temperature of 130 deg.F (54.4 deg.C) or below.

    Responsible party means someone who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary.

    Specific chemical identity means the chemical name, Chemical Abstracts Service (CAS) Registry Number, or any other information that reveals the precise chemical designation of the substance.

    Trade secret means any confidential formula, pattern, process, device, information or compilation of information that is used in an employer's business, and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it. Appendix D sets out the criteria to be used in evaluating trade secrets.

    Unstable (reactive) means a chemical which in the pure state, or as produced or transported, will vigorously polymerize, decompose, condense, or will become self‑reactive under conditions of shocks, pressure or temperature.

    Use means to package, handle, react, emit, extract, generate as a byproduct, or transfer.

    Water‑reactive means a chemical that reacts with water to release a gas that is either flammable or presents a health hazard.

    Work area means a room or defined space in a workplace where hazardous chemicals are produced or used, and where employees are present.

    Workplace means an establishment, job site, or project, at one geographical location containing one or more work areas.

    (d) Hazard determination. (1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. Employers are not required to evaluate chemicals unless they choose not to rely on the evaluation performed by the chemical manufacturer or importer for the chemical to satisfy this requirement.

    (2) Chemical manufacturers, importers or employers evaluating chemicals shall identify and consider the available scientific evidence concerning such hazards. For health hazards, evidence which is statistically significant and which is based on at least one positive study conducted in accordance with established scientific principles is considered to be sufficient to establish a hazardous effect if the results of the study meet the definitions of health hazards in this section. Appendix A shall be consulted for the scope of health hazards covered, and Appendix B shall be consulted for the criteria to be followed with respect to the completeness of the evaluation, and the data to be reported.

    (3) The chemical manufacturer, importer or employer evaluating chemicals shall treat the following sources as establishing that the chemicals listed in them are hazardous:

    (i) 29 CFR part 1910, subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA); or,


    (ii) Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition). The chemical manufacturer, importer, or employer is still responsible for evaluating the hazards associated with the chemicals in these source lists in accordance with the requirements of this standard.

    (4) Chemical manufacturers, importers and employers evaluating chemicals shall treat the following sources as establishing that a chemical is a carcinogen or potential carcinogen for hazard communication purposes:

    (i) National Toxicology Program (NTP), Annual Report on Carcinogens (latest edition);

    (ii) International Agency for Research on Cancer (IARC) Monographs (latest editions); or

    (iii) 29 CFR part 1910, subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration.

 

    Note: The Registry of Toxic Effects of Chemical Substances published by the National Institute for Occupational Safety and Health indicates whether a chemical has been found by NTP or IARC to be a potential carcinogen.

 

    (5) The chemical manufacturer, importer or employer shall determine the hazards of mixtures of chemicals as follows:

    (i) If a mixture has been tested as a whole to determine its hazards, the results of such testing shall be used to determine whether the mixture is hazardous;

    (ii) If a mixture has not been tested as a whole to determine whether the mixture is a health hazard, the mixture shall be assumed to present the same health hazards as do the components which comprise one percent (by weight or volume) or greater of the mixture, except that the mixture shall be assumed to present a carcinogenic hazard if it contains a component in concentrations of 0.1 percent or greater which is considered to be a carcinogen under paragraph (d)(4) of this section;

    (iii) If a mixture has not been tested as a whole to determine whether the mixture is a physical hazard, the chemical manufacturer, importer, or employer may use whatever scientifically valid data is available to evaluate the physical hazard potential of the mixture; and,

    (iv) If the chemical manufacturer, importer, or employer has evidence to indicate that a component present in the mixture in concentrations of less than one percent (or in the case of carcinogens, less than 0.1 percent) could be released in concentrations which would exceed an established OSHA permissible exposure limit or ACGIH Threshold Limit Value, or could present a health risk to employees in those concentrations, the mixture shall be assumed to present the same hazard.

    (6) Chemical manufacturers, importers, or employers evaluating chemicals shall describe in writing the procedures they use to determine the hazards of the chemical they evaluate. The written procedures are to be made available, upon request, to employees, their designated representatives, the Assistant Secretary and the Director. The written description may be incorporated into the written hazard communication program required under paragraph (e) of this section.


    (e) Written hazard communication program. (1) Employers shall develop, implement, and maintain at each workplace, a written hazard communication program which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met, and which also includes the following:

    (i) A list of the hazardous chemicals known to be present using an identity that is referenced on the appropriate material safety data sheet (the list may be compiled for the workplace as a whole or for individual work areas); and,

    (ii) The methods the employer will use to inform employees of the hazards of non‑routine tasks (for example, the cleaning of reactor vessels), and the hazards associated with chemicals contained in unlabeled pipes in their work areas.

    (2) Multi‑employer workplaces. Employers who produce, use, or store hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed (for example, employees of a construction contractor working on‑site) shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:

    (i) The methods the employer will use to provide the other employer(s) on‑site access to material safety data sheets for each hazardous chemical the other employer(s)' employees may be exposed to while working;

    (ii) The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees during the workplace's normal operating conditions and in foreseeable emergencies; and,

    (iii) The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.

    (3) The employer may rely on an existing hazard communication program to comply with these requirements, provided that it meets the criteria established in this paragraph (e).

    (4) The employer shall make the written hazard communication program available, upon request, to employees, their designated representatives, the Assistant Secretary and the Director, in accordance with the requirements of 29 CFR 1910.20 (e).

    (5) Where employees must travel between workplaces during a workshift, i.e., their work is carried out at more than one geographical location, the written hazard communication program may be kept at the primary workplace facility.

    (f) Labels and other forms of warning. (1) The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information:

    (i) Identity of the hazardous chemical(s);

    (ii) Appropriate hazard warnings; and

    (iii) Name and address of the chemical manufacturer, importer, or other responsible party.

    (2)(i) For solid metal (such as a steel beam or a metal casting), solid wood, or plastic items that are not exempted as articles due to their downstream use, or shipments of whole grain, the required label may be transmitted to the customer at the time of the initial shipment, and need not be included with subsequent shipments to the same employer unless the information on the label changes;

    (ii) The label may be transmitted with the initial shipment itself, or with the material safety data sheet that is to be provided prior to or at the time of the first shipment; and,


    (iii) This exception to requiring labels on every container of hazardous chemicals is only for the solid material itself, and does not apply to hazardous chemicals used in conjunction with, or known to be present with, the material and to which employees handling the items in transit may be exposed (for example, cutting fluids or pesticides in grains).

    (3) Chemical manufacturers, importers, or distributors shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged, or marked in accordance with this section in a manner which does not conflict with the requirements of the Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.) and regulations issued under that Act by the Department of Transportation.

    (4) If the hazardous chemical is regulated by OSHA in a substance‑specific health standard, the chemical manufacturer, importer, distributor or employer shall ensure that the labels or other forms of warning used are in accordance with the requirements of that standard.

    (5) Except as provided in paragraphs (f)(6) and (f)(7) of this section, the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:

    (i) Identity of the hazardous chemical(s) contained therein; and,

  (ii) Appropriate hazard warnings, or alternatively, words, pictures, symbols, or combination thereof, which provide at least general information regarding the hazards of the chemicals, and which, in conjunction with the other information immediately available to employees under the hazard communication program, will provide employees with the specific information regarding the physical and health hazards of the hazardous chemical.

    (6) The employer may use signs, placards, process sheets, batch tickets, operating procedures, or other such written materials in lieu of affixing labels to individual stationary process containers, as long as the alternative method identifies the containers to which it is applicable and conveys the information required by paragraph (f)(5) of this section to be on a label. The written materials shall be readily accessible to the employees in their work area throughout each work shift.

    (7) The employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer. For purposes of this section, drugs which are dispensed by a pharmacy to a health care provider for direct administration to a patient are exempted from labeling.

    (8) The employer shall not remove or deface existing labels on incoming containers of hazardous chemicals, unless the container is immediately marked with the required information.

    (9) The employer shall ensure that labels or other forms of warning are legible, in English, and prominently displayed on the container, or readily available in the work area throughout each work shift. Employers having employees who speak other languages may add the information in their language to the material presented, as long as the information is presented in English as well.

    (10) The chemical manufacturer, importer, distributor or employer need not affix new labels to comply with this section if existing labels already convey the required information.


    (11) Chemical manufacturers, importers, distributors, or employers who become newly aware of any significant information regarding the hazards of a chemical shall revise the labels for the chemical within three months of becoming aware of the new information. Labels on containers of hazardous chemicals shipped after that time shall contain the new information. If the chemical is not currently produced or imported, the chemical manufacturer, importers, distributor, or employer shall add the information to the label before the chemical is shipped or introduced into the workplace again.

    (g) Material safety data sheets. (1) Chemical manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous chemical they produce or import. Employers shall have a material safety data sheet in the workplace for each hazardous chemical which they use.

    (2) Each material safety data sheet shall be in English (although the employer may maintain copies in other languages as well), and shall contain at least the following information:

    (i) The identity used on the label, and, except as provided for in paragraph (i) of this section on trade secrets:

    (A) If the hazardous chemical is a single substance, its chemical and common name(s);

    (B) If the hazardous chemical is a mixture which has been tested as a whole to determine its hazards, the chemical and common name(s) of the ingredients which contribute to these known hazards, and the common name(s) of the mixture itself; or,

    (C) If the hazardous chemical is a mixture which has not been tested as a whole:

    (1) The chemical and common name(s) of all ingredients which have been determined to be health hazards, and which comprise 1% or greater of the composition, except that chemicals identified as carcinogens under paragraph (d) of this section shall be listed if the concentrations are 0.1% or greater; and,

    (2) The chemical and common name(s) of all ingredients which have been determined to be health hazards, and which comprise less than 1% (0.1% for carcinogens) of the mixture, if there is evidence that the ingredient(s) could be released from the mixture in concentrations which would exceed an established OSHA permissible exposure limit or ACGIH Threshold Limit Value, or could present a health risk to employees; and,

    (3) The chemical and common name(s) of all ingredients which have been determined to present a physical hazard when present in the mixture;

    (ii) Physical and chemical characteristics of the hazardous chemical (such as vapor pressure, flash point);

    (iii) The physical hazards of the hazardous chemical, including the potential for fire, explosion, and reactivity;

    (iv) The health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical;

    (v) The primary route(s) of entry;

    (vi) The OSHA permissible exposure limit, ACGIH Threshold Limit Value, and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the material safety data sheet, where available;


    (vii) Whether the hazardous chemical is listed in the National Toxicology Program (NTP) Annual Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest editions), or by OSHA;

    (viii) Any generally applicable precautions for safe handling and use which are known to the chemical manufacturer, importer or employer preparing the material safety data sheet, including appropriate hygienic practices, protective measures during repair and maintenance of contaminated equipment, and procedures for clean‑up of spills and leaks;

    (ix) Any generally applicable control measures which are known to the chemical manufacturer, importer or employer preparing the material safety data sheet, such as appropriate engineering controls, work practices, or personal protective equipment;

    (x) Emergency and first aid procedures;

    (xi) The date of preparation of the material safety data sheet or the last change to it; and,

    (xii) The name, address and telephone number of the chemical manufacturer, importer, employer or other responsible party preparing or distributing the material safety data sheet, who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary.

    (3) If no relevant information is found for any given category on the material safety data sheet, the chemical manufacturer, importer or employer preparing the material safety data sheet shall mark it to indicate that no applicable information was found.

    (4) Where complex mixtures have similar hazards and contents (i.e. the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture), the chemical manufacturer, importer or employer may prepare one material safety data sheet to apply to all of these similar mixtures.

    (5) The chemical manufacturer, importer or employer preparing the material safety data sheet shall ensure that the information recorded accurately reflects the scientific evidence used in making the hazard determination. If the chemical manufacturer, importer or employer preparing the material safety data sheet becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the material safety data sheet within three months. If the chemical is not currently being produced or imported the chemical manufacturer or importer shall add the information to the material safety data sheet before the chemical is introduced into the workplace again.

    (6)(i) Chemical manufacturers or importers shall ensure that distributors and employers are provided an appropriate material safety data sheet with their initial shipment, and with the first shipment after a material safety data sheet is updated;

    (ii) The chemical manufacturer or importer shall either provide material safety data sheets with the shipped containers or send them to the distributor or employer prior to or at the time of the shipment;

    (iii) If the material safety data sheet is not provided with a shipment that has been labeled as a hazardous chemical, the distributor or employer shall obtain one from the chemical manufacturer or importer as soon as possible; and,

    (iv) The chemical manufacturer or importer shall also provide distributors or employers with a material safety data sheet upon request.


    (7)(i) Distributors shall ensure that material safety data sheets, and updated information, are provided to other distributors and employers with their initial shipment and with the first shipment after a material safety data sheet is updated;

    (ii) The distributor shall either provide material safety data sheets with the shipped containers, or send them to the other distributor or employer prior to or at the time of the shipment;

    (iii) Retail distributors selling hazardous chemicals to employers having a commercial account shall provide a material safety data sheet to such employers upon request, and shall post a sign or otherwise inform them that a material safety data sheet is available;

    (iv) Wholesale distributors selling hazardous chemicals to employers over‑the‑counter may also provide material safety data sheets upon the request of the employer at the time of the over‑the‑counter purchase, and shall post a sign or otherwise inform such employers that a material safety data sheet is available;

    (v) If an employer without a commercial account purchases a hazardous chemical from a retail distributor not required to have material safety data sheets on file (i.e., the retail distributor does not have commercial accounts and does not use the materials), the retail distributor shall provide the employer, upon request, with the name, address, and telephone number of the chemical manufacturer, importer, or distributor from which a material safety data sheet can be obtained;

    (vi) Wholesale distributors shall also provide material safety data sheets to employers or other distributors upon request; and,

    (vii) Chemical manufacturers, importers, and distributors need not provide material safety data sheets to retail distributors that have informed them that the retail distributor does not sell the product to commercial accounts or open the sealed container to use it in their own workplaces.

    (8) The employer shall maintain in the workplace copies of the required material safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s). (Electronic access, microfiche, and other alternatives to maintaining paper copies of the material safety data sheets are permitted as long as no barriers to immediate employee access in each workplace are created by such options.)

    (9) Where employees must travel between workplaces during a workshift, i.e., their work is carried out at more than one geographical location, the material safety data sheets may be kept at the primary workplace facility. In this situation, the employer shall ensure that employees can immediately obtain the required information in an emergency.

    (10) Material safety data sheets may be kept in any form, including operating procedures, and may be designed to cover groups of hazardous chemicals in a work area where it may be more appropriate to address the hazards of a process rather than individual hazardous chemicals. However, the employer shall ensure that in all cases the required information is provided for each hazardous chemical, and is readily accessible during each work shift to employees when they are in their work area(s).

    (11) Material safety data sheets shall also be made readily available, upon request, to designated representatives and to the Assistant Secretary, in accordance with the requirements of 29 CFR 1910.20(e). The Director shall also be given access to material safety data sheets in the same manner.


    (h) Employee information and training. (1) Employers shall provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new physical or health hazard the employees have not previously been trained about is introduced into their work area. Information and training may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals. Chemical‑specific information must always be available through labels and material safety data sheets.

    (2) Information. Employees shall be informed of:

    (i) The requirements of this section;

    (ii) Any operations in their work area where hazardous chemicals are present; and,

    (iii) The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required by this section.

    (3) Training. Employee training shall include at least:

    (i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.);

    (ii) The physical and health hazards of the chemicals in the work area;

    (iii) The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and,

    (iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information.

    (i) Trade secrets. (1) The chemical manufacturer, importer, or employer may withhold the specific chemical identity, including the chemical name and other specific identification of a hazardous chemical, from the material safety data sheet, provided that:

    (i) The claim that the information withheld is a trade secret can be supported;

    (ii) Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed;

    (iii) The material safety data sheet indicates that the specific chemical identity is being withheld as a trade secret; and,

    (iv) The specific chemical identity is made available to health professionals, employees, and designated representatives in accordance with the applicable provisions of this paragraph.


    (2) Where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first‑aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity of a trade secret chemical to that treating physician or nurse, regardless of the existence of a written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and confidentiality agreement, in accordance with the provisions of paragraphs (i) (3) and (4) of this section, as soon as circumstances permit.

    (3) In non‑emergency situations, a chemical manufacturer, importer, or employer shall, upon request, disclose a specific chemical identity, otherwise permitted to be withheld under paragraph (i)(1) of this section, to a health professional (i.e. physician, industrial hygienist, toxicologist, epidemiologist, or occupational health nurse) providing medical or other occupational health services to exposed employee(s), and to employees or designated representatives, if:

    (i) The request is in writing;

    (ii) The request describes with reasonable detail one or more of the following occupational health needs for the information:

    (A) To assess the hazards of the chemicals to which employees will be exposed;

    (B) To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;

    (C) To conduct pre‑assignment or periodic medical surveillance of exposed employees;

    (D) To provide medical treatment to exposed employees;

  (E) To select or assess appropriate personal protective equipment for exposed employees;

    (F) To design or assess engineering controls or other protective measures for exposed employees; and,

    (G) To conduct studies to determine the health effects of exposure.

    (iii) The request explains in detail why the disclosure of the specific chemical identity is essential and that, in lieu thereof, the disclosure of the following information to the health professional, employee, or designated representative, would not satisfy the purposes described in paragraph (i)(3)(ii) of this section:

    (A) The properties and effects of the chemical;

    (B) Measures for controlling workers' exposure to the chemical;

    (C) Methods of monitoring and analyzing worker exposure to the chemical; and,

    (D) Methods of diagnosing and treating harmful exposures to the chemical;

    (iv) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and,

    (v) The health professional, and the employer or contractor of the services of the health professional (i.e. downstream employer, labor organization, or individual employee), employee, or designated representative, agree in a written confidentiality agreement that the health professional, employee, or designated representative, will not use the trade secret information for any purpose other than the health need(s) asserted and agree not to release the information under any circumstances other than to OSHA, as provided in paragraph (i)(6) of this section, except as authorized by the terms of the agreement or by the chemical manufacturer, importer, or employer.

    (4) The confidentiality agreement authorized by paragraph (i)(3)(iv) of this section:

    (i) May restrict the use of the information to the health purposes indicated in the written statement of need;

    (ii) May provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre‑estimate of likely damages; and,

    (iii) May not include requirements for the posting of a penalty bond.


    (5) Nothing in this standard is meant to preclude the parties from pursuing non‑contractual remedies to the extent permitted by law.

    (6) If the health professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to OSHA, the chemical manufacturer, importer, or employer who provided the information shall be informed by the health professional, employee, or designated representative prior to, or at the same time as, such disclosure.

    (7) If the chemical manufacturer, importer, or employer denies a written request for disclosure of a specific chemical identity, the denial must:

    (i) Be provided to the health professional, employee, or designated representative, within thirty days of the request;

    (ii) Be in writing;

    (iii) Include evidence to support the claim that the specific chemical identity is a trade secret;

    (iv) State the specific reasons why the request is being denied; and,

    (v) Explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity.

    (8) The health professional, employee, or designated representative whose request for information is denied under paragraph (i)(3) of this section may refer the request and the written denial of the request to OSHA for consideration.

    (9) When a health professional, employee, or designated representative refers the denial to OSHA under paragraph (i)(8) of this section, OSHA shall consider the evidence to determine if:

    (i) The chemical manufacturer, importer, or employer has supported the claim that the specific chemical identity is a trade secret;

    (ii) The health professional, employee, or designated representative has supported the claim that there is a medical or occupational health need for the information; and,

    (iii) The health professional, employee or designated representative has demonstrated adequate means to protect the confidentiality.

    (10)(i) If OSHA determines that the specific chemical identity requested under paragraph (i)(3) of this section is not a bona fide trade secret, or that it is a trade secret, but the requesting health professional, employee, or designated representative has a legitimate medical or occupational health need for the information, has executed a written confidentiality agreement, and has shown adequate means to protect the confidentiality of the information, the chemical manufacturer, importer, or employer will be subject to citation by OSHA.

    (ii) If a chemical manufacturer, importer, or employer demonstrates to OSHA that the execution of a confidentiality agreement would not provide sufficient protection against the potential harm from the unauthorized disclosure of a trade secret specific chemical identity, the Assistant Secretary may issue such orders or impose such additional limitations or conditions upon the disclosure of the requested chemical information as may be appropriate to assure that the occupational health services are provided without an undue risk of harm to the chemical manufacturer, importer, or employer.


    (11) If a citation for a failure to release specific chemical identity information is contested by the chemical manufacturer, importer, or employer, the matter will be adjudicated before the Occupational Safety and Health Review Commission in accordance with the Act's enforcement scheme and the applicable Commission rules of procedure. In accordance with the Commission rules, when a chemical manufacturer, importer, or employer continues to withhold the information during the contest, the Administrative Law Judge may review the citation and supporting documentation in camera or issue appropriate orders to protect the confidentiality of such matters.

    (12) Notwithstanding the existence of a trade secret claim, a chemical manufacturer, importer, or employer shall, upon request, disclose to the Assistant Secretary any information which this section requires the chemical manufacturer, importer, or employer to make available. Where there is a trade secret claim, such claim shall be made no later than at the time the information is provided to the Assistant Secretary so that suitable determinations of trade secret status can be made and the necessary protections can be implemented.

    (13) Nothing in this paragraph shall be construed as requiring the disclosure under any circumstances of process or percentage of mixture information which is a trade secret.

    (j) Effective dates. Chemical manufacturers, importers, distributors, and employers shall be in compliance with all provisions of this section by March 11, 1994.

 

    Note: The effective date of the clarification that the exemption of wood and wood products from the Hazard Communication standard in paragraph (b)(6)(iv) only applies to wood and wood products including lumber which will not be processed, where the manufacturer or importer

can establish that the only hazard they pose to employees is the potential for flammability or combustibility, and that the exemption does not apply to wood or wood products which have been treated with a hazardous chemical covered by this standard, and wood which may be subsequently sawed or cut generating dust has been stayed from March 11, 1994 to August 11, 1994.

 

 

                                      SELECTED STATE OF TEXAS CODES

 

Health and Safety Code

CHAPTER 502. 

HAZARD COMMUNICATION ACT

Sec. 502.001.  Short Title.

This chapter may be cited as the Hazard Communication Act.  Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 502.002.  Findings; Purpose.

         (a) The legislature finds that:


(1) the health and safety of persons working in this state may be improved by providing access to information regarding hazardous chemicals to which those persons may be exposed during normal employment activities, during emergency situations, or as a result of proximity to the manufacture or use of those chemicals; and

(2) many employers in this state have established suitable information programs for their employees and that access to the information is required of most employers under the federal  Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard.

         (b) It is the intent and purpose of this chapter to assure that employers provide information regarding hazardous chemicals in the workplace to employees who may be exposed to those chemicals in their workplace.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.0021.  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. 1, eff. Sept. 1, 1993.

 

Sec. 502.003.  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 manufacturer" means an employer in Standard Industrial Classification (SIC) Codes 20‑39 with a workplace where chemicals are produced for use or distribution.

(4) "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.

(5) "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.

(6) "Department" means the Texas Department of Health.


(7) "Designated representative" means the individual or organization to whom an employee gives written authorization to exercise the employee's rights under this chapter, except that a recognized or certified collective bargaining agent is a designated representative regardless of written employee authorization.

(8) "Director" means the director of the Texas Department of Health.

(9) "Distributor" means a business in Standard Industrial Classification Major Industry Group 516 or 517 that supplies  hazardous chemicals to an employer who must comply with this  Act.

(10) "Employee" means a person who may be or may have been exposed to hazardous chemicals in the person's workplace under normal operating conditions or foreseeable emergencies, and includes a person working for this state, a person working for a political subdivision of this state, or a member of a volunteer emergency service organization or, if the applicable OSHA standard or MSHA standard is not in effect, a person working for a private employer.  Workers such as office workers or accountants who encounter hazardous chemicals only in nonroutine, isolated instances are not employees for purposes of this chapter.

(11) "Employer" means a person engaged in private business who is regulated 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)  on the effective date of this Act, or the state or a political subdivision of the state, including a state, county, or municipal agency, a public school, a college or university, a river authority or publicly owned utility, a volunteer emergency service organization, and other similar employers.  The term does not include any person to whom 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) is applicable if that employer is covered by the OSHA standard or the other two federal laws.

(12) "Expose" or "exposure" means that an employee is subjected to a hazardous chemical in the course of employment through any route of entry, including inhalation, ingestion,   skin contact, or absorption.  The term includes potential, possible, or accidental exposure under normal conditions of use or in a reasonably foreseeable emergency.

(13) "Hazardous chemical" or "chemical" means an element, compound, or mixture of elements or compounds that is a physical hazard or health hazard as defined by the OSHA standard in 29 CFR Section 1910.1200(c), or a hazardous substance as defined by the OSHA standard in 29 CFR Section1910.1200(d)(3), or by OSHA's written interpretations.  A     hazard determination may be made by employers who choose not to rely on the evaluations made by their suppliers if there are relevant qualitative or quantitative differences.  A hazard determination shall involve the best professional judgment.

(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 workplace 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) "Material Safety Data Sheet" ("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.

(18) "MSHA standard" means the Hazard Communication Standard issued by the Mining Safety and Health Administration.

(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) "Temporary workplace" means a stationary workplace that is staffed less than 20 hours a week.  A temporary workplace may be considered to be a work area of the headquarters workplace from which employees are routinely dispatched. Temporary workplaces may include pumping stations, emergency response sites, and similar workplaces.

(22) "Work area" means a room, a defined space, a utility structure, or an emergency response site in a workplace where hazardous chemicals are present, produced, or used and where employees are present.

(23) "Workplace" means an establishment, job site, or project, at one geographical location containing one or more work areas, with or without buildings, that is staffed 20 or more hours a week.

(24) "Workplace chemical list" means a list of hazardous chemicals developed under Section 502.005(a).

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.004.  Applicability of Chapter.

       (a) Except as provided by Subsection (b), this chapter applies only to employers who are not required to comply with the OSHA standard, 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).

       (b) Chemical manufacturers, importers, and distributors shall provide MSDSs as required by Section 502.006.  Penalties provided by Sections 502.014, 502.015, and 502.016 may be assessed against chemical manufacturers, importers, and distributors for failure to provide MSDSs.

       (c) If an employer is covered by both this chapter and Chapter 125, Agriculture Code, the employer is required to comply only with this chapter.

       (d) This chapter, except Section 502.009, does not apply to a hazardous chemical in a sealed and labeled package that is received and subsequently sold or transferred in that package if:

(1) the seal and label remain intact while the chemical is in the workplace; and


(2) the chemical does not remain in the workplace longer than five working days.

       (e) This chapter does not require labeling of the following chemicals:

(1) any pesticide, as that term is defined in the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.), when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Environmental Protection Agency;

(2) any food, food additive, color additive, drug, cosmetic, or medical or veterinary device, including materials intended for use as ingredients in those products such as flavors and fragrances, as those terms are defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) and regulations issued under that Act, when they are subject to the labeling requirements under that Act by the Food and Drug Administration;

(3) any distilled spirits that are beverage alcohols, wine, or malt beverages intended for nonindustrial use, as those terms are defined in the Federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.) and regulations issued under that Act, when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Bureau of Alcohol, Tobacco, and Firearms; and

(4) 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, when subject to a consumer product safety standard or labeling requirement of those Acts or regulations issued under those Acts by the Consumer Product Safety Commission.

       (f) 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 Environmental Protection Agency;

(2) a chemical in a laboratory under the direct supervision or guidance of a technically qualified individual if:

(A) labels on incoming containers of chemicals are not removed or defaced;

(B) the employer complies with Sections 502.006 and 502.009 with respect to laboratory employees; and

(C) the laboratory is not used primarily to produce hazardous chemicals in bulk for commercial purposes;

(3) tobacco or tobacco products;

(4) wood or wood products;

(5) articles;

(6) food, drugs, cosmetics, or alcoholic beverages in a retail food sale establishment that are packaged for sale to consumers;

(7) food, drugs, or cosmetics intended for personal consumption by an employee while in the workplace;


(8) 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 workplace 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;

(9) any drug, as that term is defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.); and

(10) radioactive waste.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.005.  Workplace Chemical List.

       (a) For the purpose of worker right‑to‑know, an employer shall compile and maintain a workplace chemical list that contains the following information for each hazardous chemical normally present in the workplace or temporary workplace in excess of 55 gallons or 500 pounds or in excess of an amount that the board determines by rule for certain highly toxic or dangerous hazardous chemicals:

(1) the identity used on the MSDS and container label; and

(2) the work area in which the hazardous chemical is normally present.

       (b) The employer shall update the workplace chemical list as necessary but at least by December 31 of each year.  Each workplace chemical list shall be dated and signed by the person responsible for compiling the information.

       (c) The workplace chemical list may be prepared for the workplace as a whole or for each work area or temporary workplace and must be readily available to employees and their representatives.  All employees shall be made aware of the workplace chemical list before working with or in a work area containing hazardous chemicals.

       (d) An employer shall maintain a workplace chemical list for at least 30 years.  The employer shall send complete records to the director if the employer ceases to operate.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.006.  Material Safety Data Sheet.

       (a) A chemical manufacturer or distributor shall provide appropriate material safety data sheets to employers who acquire hazardous chemicals in this state with each initial shipment and with the first shipment after an MSDS is updated.  The MSDSs must conform to the most current requirements of the OSHA standard.

        (b) An employer shall maintain a legible copy of a current MSDS for each hazardous chemical purchased.  If the employer does not have a current MSDS for a hazardous chemical when the chemical is received at the workplace, the employer shall request an MSDS in writing from the manufacturer or distributor in a timely manner or shall otherwise obtain a current MSDS.  The manufacturer or distributor shall respond with an appropriate MSDS in a timely manner.

       (c) Material safety data sheets shall be readily available, on request, for review by employees or designated representatives at each workplace.

       (d) A copy of an MSDS maintained by an employer under this section shall be provided to the director on request.


Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.007.  Label.

       (a) A label on an existing container of a hazardous chemical may not be removed or defaced unless it is illegible, inaccurate, or does not conform to the OSHA standard or other applicable

labeling requirement.  Primary containers must be relabeled with at least the identity appearing on the MSDS, the pertinent physical and health hazards, including the organs that would be affected, and the manufacturer's name and address.  Except as provided by Subsection (b), secondary containers must be relabeled with at least the identity appearing on the MSDS and appropriate hazard warnings.

        (b) An employee may not be required to work with a hazardous chemical from an unlabeled container except for a portable container intended for the immediate use of the employee who performs the transfer.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.008.  Outreach Program.

       (a) The director shall develop an outreach program that:

(1) consists of an education and training program in the form of instructional materials to assist employers in fulfilling the requirements of Section 502.009; and

(2) includes the development and distribution of a supply of informational leaflets concerning employer's duties, employee rights, the outreach program, and the effects of hazardous chemicals.

       (b) The director may contract with a public institution of higher education or other public or private organization to develop and implement the outreach program.

       (c) The director shall develop and provide to each employer a suitable form of notice providing employees with information relating to employee rights under this chapter.

       (d) The director shall publicize the availability of information to answer inquiries from employees, employers, or the public in this state concerning the effects of hazardous chemicals.

       (e) In cooperation with the director, an employer may provide an outreach program in the community.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 502.009 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 502.009.  Employee Education Program.

       (a) An employer shall provide an education and training program for employees who use or handle hazardous chemicals.

       (b) An employer shall develop, implement, and maintain at the workplace a written hazard communication program for the workplace that describes how the criteria specified in this chapter will be met.


       (c) An education and training program must include, as appropriate:

(1) information on interpreting labels and MSDSs and the relationship between those two methods of hazard communication;

(2) the location by work area, acute and chronic effects, and safe handling of hazardous chemicals known to be present in the employees' work area and to which the employees may be exposed;

(3) the proper use of protective equipment and first aid treatment to be used with respect to the hazardous chemicals to which the employees may be exposed; and

(4) general safety instructions on the handling, cleanup procedures, and disposal of hazardous chemicals.

       (d) Training may be conducted by categories of chemicals.  An employer must advise employees that information is available on the specific hazards of individual chemicals through the MSDSs.  Protective equipment and first aid treatment may be by categories of hazardous chemicals.

       (e) An employer shall provide additional instruction to an employee when the potential for exposure to hazardous chemicals in the employee's work area increases significantly or when the

employer receives new and significant information concerning the hazards of a chemical in the employee's work area.  The addition of new chemicals alone does not necessarily require additional training.

       (f) An employer shall provide training to a new or newly assigned employee before the employee works with or in a work area containing a hazardous chemical.

       (g) An employer shall keep the written hazard communication program and a record of each training session given to employees, including the date, a roster of the employees who attended, the subjects covered in the training session, and the names of the instructors.  Those records shall be maintained for at least five years by the employer.  The department shall have access to those

records and may interview employees during inspections.

       (h) Emergency service organizations shall provide, to their members or employees who may encounter hazardous chemicals during an emergency, information on recognizing, evaluating, and

controlling exposure to the chemicals.

       (i) As part of an outreach program created in accordance with Section 502.008, the director shall develop an education and training assistance program to assist employers who are unable to develop the programs because of size or other practical considerations.  The program shall be made available to those employers on request.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 502.010 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

 

Sec. 502.010.  Liability Under Other Law.

         Providing information to an employee does not affect:


(1) the liability of an employer with regard to the health and safety of an employee or other person exposed to hazardous chemicals;

(2) the employer's responsibility to take any action to prevent occupational disease as required under other law; or

(3) any other duty or responsibility of a manufacturer, producer, or formulator to warn ultimate users of a hazardous chemical under other law.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 502.011 and amended by Acts 1993, 73rd Leg., ch. 528, eff. Sept. 1, 1993.

 

Sec. 502.011.  Complaints and Investigations.

       (a) The director or the director's representative shall investigate in a timely manner a complaint received in writing from an employee or an employee's designated representative relating to an alleged violation of this chapter by an employer.

       (b) A complaint received from a person relating to an alleged violation shall be referred to the federal Occupational Safety and Health Administration (OSHA) or to the federal Mine Safety and Health Administration (MSHA) if the complaint is related to an applicable OSHA or MSHA requirement and the applicable OSHA or MSHA standard is in effect.  The director or the director's representative shall investigate the complaint if:

(1) the applicable OSHA or MSHA standard is not in effect; or

(2) the complaint is based on a requirement of this chapter.

       (c) On presentation of appropriate credentials, an officer or representative of the director may enter a workplace at reasonable times to inspect and investigate complaints.

       (d) The department may find multiple violations by an employer based on distinct requirements of this chapter

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 502.012 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 502.012.  Reporting Fatalities and Injuries.

       (a) Within 48 hours after the occurrence of an employee accident that directly or indirectly involves chemical exposure or that involves asphyxiation, and that is fatal to one or more employees or results in the hospitalization of five or more employees, the employer of any of the employees so injured or killed shall report the accident either orally or in writing to the department.

       (b) The report to the department shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries.  If it is necessary to complete the investigation of an incident, the department may require additional reports in writing as necessary.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.014.  Administrative Penalty.


       (a) The director may assess an administrative penalty against an employer 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 employer.  The notice of violation shall specifically describe the violation, refer to the applicable section or subsection of the chapter, and state the amount of the penalty, if any, to be assessed by the director.

       (c) An employer who receives a notice of violation may respond to the department in writing within 15 days after the date of receipt of the notice of violation in one of the ways provided by Subsection (d), (e), or (f).

       (d) If the employer 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 employer may request an informal conference with representatives of the department.  The purpose of an informal conference is to permit the employer 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 employer may correct the violation and certify to the department that the corrections have been made.

       (f) The employer may request a hearing.

       (g) Following an informal conference, the department shall respond in writing to the employer, 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 employer may respond as provided by either Subsection (h) or (i) within 10 days after the date of receipt of the department's correspondence.

       (h) The employer may correct the violation and certify to the department that the corrections have been made.

       (i) The employer may request a hearing.

       (j) A request for an informal conference or a statement by an employer that the employer is in compliance with the provision of this chapter does not waive the employer's right to a hearing.

       (k) The director may not assess an administrative penalty for any violation that has been corrected within 15 days after 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 employer of the department's response to the informal conference provided for in Subsection (c), whichever is later.

       (l) In determining the amount of the penalty, the director shall consider:

                       (1) the employer's previous violations;

                       (2) the seriousness of the violation;

                       (3) any hazard to the health and safety of the employee;

                       (4) the employer's demonstrated good faith;

                       (5) the duration of the violation; and

                       (6) other matters as justice may require.

       (m) Each day a violation continues may be considered a separate violation.

       (n) The penalty may not exceed $500 for each violation.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.


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

 

Sec. 502.0141.  Administrative Penalty Assessment Procedure.

       (a) An administrative penalty may be assessed only after an employer 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 employer charged with the violation does not request a hearing in a timely manner, 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 an employer, the director shall issue an order requiring that the employer pay the penalty.

       (e) The director may consolidate a hearing held under this section with another proceeding.

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

 

Sec. 502.0142.  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 employer against whom the order is issued of the amount of the penalty for the violation.

       (b) Within 30 days after the date the director's order is final as provided by Subchapter F, Chapter 2001, Government Code, the employer 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, an employer 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 employer stating that the employer 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) Subsection (c)(1) does not apply to the state or a political subdivision.  The penalty may not be enforced against the state or a political subdivision until all judicial review has been exhausted.

       (e) 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 employer who files an affidavit has the burden of proving that the employer is financially unable to pay the amount of the penalty and to give a supersedeas bond.

       (f) If the employer 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.

       (g) 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.

       (h) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the employer 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.

       (i) When the judgment of the court becomes final, the court shall proceed under this subsection.  If the employer 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 employer.  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 employer 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 employer gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the employer pays the amount.

      (j) All proceedings under this section are subject to Chapter 2001, Government Code.

Added by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1,1993.   Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), (53), (59), eff. Sept. 1, 1995.

 

Sec. 502.015.  Civil Penalty; Injunction.

       (a) If it appears that an employer has violated, is violating, or is threatening to violate this chapter or any rule adopted or order issued under this chapter, the director may request the attorney general or the district, county, or city attorney of the municipality or county in which the violation has occurred, is occurring, or may occur to institute a civil suit for:

(1) injunctive relief to restrain the employer from continuing the violation or threat of violation;

 (2) the assessment and recovery of a civil penalty for a violation; or

(3) both the injunctive relief and the civil penalty.


       (b) The penalty may be in an amount not to exceed $2,000 a day for each violation, with a total not to exceed $20,000 for that violation.

       (c) In determining the amount of the penalty, the court shall consider the employer's history of previous violations, the seriousness of the violation, any hazard to health and safety of the public, the demonstrated good faith of the employer charged, and other matters as justice may require.

       (d) Any civil penalty recovered in a suit instituted by the attorney general under this chapter shall be deposited in the state treasury to the credit of the general revenue fund.  Any civil penalty recovered in a suit instituted by a local government under this chapter shall be paid to the local

government.

       (e) This section does not affect any other right of an employee or any other employer to receive compensation for damages under other law.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.016.  Criminal Penalty.

         An employer who is required to disclose hazard information under this chapter and who proximately causes an occupational disease or injury to an individual by knowingly disclosing false hazard information or knowingly failing to disclose hazard information provided on an MSDS commits an offense that is punishable by a fine of not more than $10,000 for each violation.   Each day of violation constitutes a separate offense, except that the fine may not exceed $100,000 for that violation.  This section does not affect any other right of an employee or any other employer to receive compensation for damages under other law.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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

 

Sec. 502.017.  Employee Notice; Rights of Employees.

       (a) An employer shall post and maintain adequate notice, at locations where notices are normally posted, informing employees of their rights under this chapter.  If the director does not prepare the notice under Section 502.008, the employer shall prepare the notice.

       (b) Employees who may be exposed to hazardous chemicals shall be informed of the exposure and shall have access to the workplace chemical list and MSDSs for the hazardous chemicals.  Employees, on request, shall be provided a copy of a specific  MSDS with any trade secret information deleted.  In addition, employees shall receive training concerning the hazards of the chemicals and measures they can take to protect themselves from those hazards.  Employees shall be provided with appropriate personal protective equipment.  These rights are guaranteed.

       (c) An employer may not discharge, cause to be discharged, otherwise discipline, or in any manner discriminate against an employee because the employee has:

(1) filed a complaint;

(2) assisted an inspector of the department who may make or is making an inspection under Section 502.011;


(3) instituted or caused to be instituted any proceeding under or related to this chapter;

(4) testified or is about to testify in a proceeding under this chapter; or

(5) exercised any rights afforded under this chapter on behalf of the employee or on behalf of others.

       (d) Pay, position, seniority, or other benefits may not be lost as the result of the exercise of any right provided by this chapter.

       (e) A waiver by an employee of the benefits or requirements of this chapter is void.  An employer's request or requirement that an employee waive any rights under this chapter as a condition of employment is a violation of this chapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.   Renumbered from Sec. 502.013 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 502.018.  Standard for Physician Treatment.

         For the purposes of this chapter, the requirements in the OSHA standard for physicians treating employees (29 CFR 1910.1200(l)) apply to physicians treating persons.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Renumbered from Sec. 502.015 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 502.019.  Rules.

         The board may adopt rules and administrative procedures reasonably necessary to carry out the purposes of this chapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Renumbered from Sec. 502.016 and amended by Acts 1993, 73rd Leg., ch. 528, Sec. 1, eff. Sept. 1, 1993

 

 

Health and Safety Code

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

(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 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;

(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 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 thanfive 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. 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.

       (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 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.

       (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. 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.

       (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 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.

       (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. 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.

       (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 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.

       (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.

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