|(a) Purpose. The purpose of these rules is to provide
facility operators with specific criteria needed to comply with the
Manufacturing Facility Community Right-to-Know Act, Health and Safety
Code (HSC), Chapter 505; the Public Employer Community Right-to-Know
Act, HSC, Chapter 506; and the Nonmanufacturing Facilities Community
Right-to-Know Act, HSC, Chapter 507.
(b) Scope. These rules are applicable to operators
of all facilities covered by HSC, Chapters 505, 506, or 507.
(c) Compatibility with Federal Laws. In order to avoid
confusion among manufacturing employers, public employers, nonmanufacturing
facilities, and persons living in this state, the Texas Department
of State Health Services shall implement the Manufacturing Facility
Community Right-To-Know Act, the Public Employer Community Right-to-Know
Act, and the Nonmanufacturing Facilities Community Right-to-Know Act
compatibly with the federal Emergency Planning and Community Right-To-Know
Act (EPCRA), which is also known as the Superfund Amendments and Reauthorization
Act of 1986 (SARA), Title III (42 USC §11001 et seq.), and related
regulations (Title 40, Code of Federal Regulations (CFR), Parts 355-370),
promulgated by the United States Environmental Protection Agency (EPA).
(d) Exclusion for Certain Hazardous Chemicals. These
rules do not apply to a hazardous chemical in a sealed package that
is received and subsequently sold or transferred in that package if:
(1) the seal remains intact while the chemical is
in the facility;
(2) the chemical does not remain in the facility longer
than five working days; and
(3) the chemical is not an extremely hazardous substance
at or above the threshold planning quantity or 500 pounds, whichever
is less, as listed by the EPA in 40 CFR, Part 355, Appendices A and
(e) Other Exclusions. This rule 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. §6901 et seq.),
when subject to regulations issued under that Act by the EPA;
(2) tobacco or tobacco products;
(3) wood or wood products;
(5) food, drugs, cosmetics, or alcoholic beverages
in a retail food sale establishment that are packaged for sale to
(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 in the Consumer Product Safety Act (15 U.S.C.
Section 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. §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. §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
(10) radioactive waste.
(f) Severability. Should any section or subsection
in this subchapter be found to be void for any reason, such finding
shall not affect any other sections.
(g) Definitions. The following words and terms, when
used in this chapter, shall have the following meanings, unless the
context clearly indicates otherwise:
(1) 505 Act--The Manufacturing Facility Community Right-To-Know
Act, Health and Safety Code, Chapter 505.
(2) 506 Act--The Public Employer Community Right-To-Know
Act, Health and Safety Code, Chapter 506.
(3) 507 Act--The Nonmanufacturing Facilities Community
Right-To-Know Act, Health and Safety Code, Chapter 507.
(4) Appropriate facility identifiers--A physical location
identification which provides a physical street address or other location
identifiers, which are sufficient for emergency planning purposes
and for data management by the department.
(5) Article--a manufactured item:
(A) that is formed to a specific shape or design during
(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.
(6) Commissioner--The Commissioner of the Department
of State Health Services. The Commissioner is referred to as the "director"
in the 505 Act §505.004(6), the 506 Act §506.004(6), and
the 507 Act §507.004(6).
(7) Current Tier Two threshold--A quantity which is
assigned to a specific hazardous chemical or extremely hazardous
substance in the most recent version of Title 40 CFR, Part 370, and
which determines whether a specific hazardous chemical or extremely
hazardous substance must be included on the Tier Two form.
(8) Department--The Department of State Health Services.
(9) Electronic Tier Two file--An electronic data file
that contains, at a minimum, all of the information required for submission
in a hard copy Tier Two form, and which provides the required Tier
Two information for each individual reportable chemical. This data
file must be prepared using software that has been approved by the
(10) EPCRA or SARA, Title III--The federal Emergency
Planning and Community Right-To-Know Act, also known as the Superfund
Amendments and Reauthorization Act of 1986, Title III, 42 USC, §§11001-11050,
and regulations promulgated by the EPA in Title 40, CFR, Parts 355-370.
(11) EHS or extremely hazardous substance--Any substance
as defined in EPCRA, §11002, or listed by the EPA in Title 40,
CFR, Part 355, Appendices A and B.
(12) Facility--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.
(13) Facility chemical list--A chemical inventory that
provides information for all reportable hazardous chemicals and EHSs
present at a reporting facility, and which is submitted to the department
in the form of a completed electronic Tier Two file.
(14) Facility operator--The person who controls the
day-to-day operations of the facility.
(15) Fire chief--The elected or paid administrative
head of the fire department having jurisdiction over a facility.
(16) Headquarters facility--Either the facility itself
when the facility is staffed more than 20 hours per week, or, for
facilities which are staffed 20 hours per week or less, the headquarters
facility is an office which is staffed full time by the facility operator
and which serves as the central office for staff who are responsible
for overseeing the operations of the facility.
(17) Latitude and longitude--A mapping coordinate system,
designated in units of decimal degrees, which serves as a facility
location description on the Tier Two form in lieu of a street address.
(18) LEPC--The Local Emergency Planning Committee,
a group of individuals representing a designated emergency planning
district and whose membership on the committee has been approved by
the Texas State Emergency Response Commission as meeting the requirements
of EPCRA, §11001.
(19) Manufacturing facilities--Facilities in Standard
Industrial Classification (SIC) Codes 20-39 or North American Industrial
Classification System (NAICS) Codes 31-33.
(20) Nonmanufacturing facilities--Facilities, other
than those facilities operated by the state or political subdivisions
of the state, and which are classified in SIC Codes 01-19 or SIC Codes
40-99 or NAICS Codes 11-23 or NAICS Codes 42-92.
(21) North American Industrial Classification System
(NAICS) Code--The six-digit number which describes a facility's primary
activity, which is determined by its principal product or group of
products produced. The NAICS Codes were developed jointly by the U.S.,
Canada, and Mexico to provide comparability in statistics about business
activity across North America and has replaced the U.S. Standard Industrial
Classification (SIC) system. For the purposes of these rules, the
NAICS Code is the one that is assigned to a facility by the Texas
Workforce Commission. If a facility does not have a NAICS Code assigned
by the Texas Workforce Commission, then the department must be consulted
for assistance in determining the correct code.
(22) Public employer facilities--Facilities operated
by the state or political subdivisions of the state. These include
educational institutions such as the University of Texas.
(23) Research laboratory--A laboratory that engages
in only research or quality control operations. Chemical specialty
product manufacturing laboratories, full scale pilot plant operation
laboratories that produce products for sale, and service laboratories
are not research laboratories.
(24) Standard Industrial Classification (SIC) Code--The
four-digit number which describes a facility's primary activity, which
is determined by its principal product or group of products produced.
This code is outdated and has been replaced with the NAICS Code.
(25) Submission or required submission--The facility
chemical list information which is submitted to the department in
the form of an electronic Tier Two file for a single facility. When
facility chemical list information for multiple facilities is submitted
to the department as one electronic Tier Two file, then the electronic
Tier Two file shall be counted by the department as multiple required
(26) Technically qualified individual--An individual
with a professional education and background working in the research
or medical fields, such as a physician, a registered nurse, or an
individual holding a college bachelor's degree in science.
(27) Texas Tier Two Electronic Filing Cover Sheet form--A
form developed by the department to collect general information about
each reporting facility which is submitting an electronic Tier Two
(28) Tier Two form--An electronic document that provides
information for all reportable hazardous chemicals and EHSs present
at a reporting facility. An "annual Tier Two form" provides the information
for all hazardous chemicals and EHSs present at a facility at any
time during the previous calendar year in quantities that met or exceeded
the then current Tier Two thresholds. An "initial Tier Two form" is
one that provides information for hazardous chemicals or EHSs that
meet or exceed the current Tier Two thresholds, but which were not
reported on a previously submitted annual Tier Two form. An "updated
Tier Two form" is one that provides significant new information concerning
an aspect of one or more hazardous chemicals or EHSs which were previously
reported on either the annual or first time Tier Two forms submitted
by a facility, and contains all the required information for hazardous
chemicals or EHSs at the facility that meet or exceed the current
Tier Two thresholds. A "modified Tier Two form" provides information
for all hazardous chemicals and EHSs that are present at a facility
at a threshold of 500 pounds; this type of report may be prepared
in response to a request from a citizen for information, in lieu
of the workplace chemical list.
(29) Workplace chemical list--A list of hazardous chemicals
developed under Title 29 CFR, §1910.1200(e)(1)(i), or the Texas
Hazard Communication Act, §502.005(a).