Part I.
Texas Department of Health
Chapter 295.
Occupational Health
The Texas Department of Health (department) adopts the repeal of existing
§§295.4-295.5 and §§295.7-295.8; amendments to §§295.1-295.3;
and new §§295.4-295.9, and §§295.11-295.13, concerning
the requirements for public employers to take actions to protect their employees
from hazardous chemicals. Sections 295.1-295.2, 295.4-295.7, and 295.11-295.12
are adopted with changes to the proposed text published in the October 30,
1998, issue of the
Texas Register
(23 TexReg
11066). Sections 295.3, 295.8-295.9 and 295.13 are adopted without changes
and repealed §§295.4-295.5 and §§295.7-295.8 are adopted
without changes and therefore will not be republished.
The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed
by the 75th Legislature, requires that each state agency review and consider
for readoption each rule adopted by that agency pursuant to the Government
Code, Chapter 2001 (Administrative Procedure Act). Sections 295.1-295.8 have
been reviewed and the department has determined that reasons for readopting
the sections continue to exist.
The sections are amended to ensure consistency between the rules and the
Health and Safety Code, Chapter 502, which was amended in 1993. The amendment
to §295.1 limits the scope of the rules to worker right-to-know issues
and establishes an effective date of September 1, 1999. The amendment to §295.2
adds new definitions and amends existing definitions to clarify the intent
of the rules. All the definitions are being numbered in new Texas Register
format to comply with 1 TAC, §91.1 effective February 17, 1998. The amendment
to §295.3 reflects a change in the division name. New §295.4 clarifies
how threshold amounts for the workplace chemical list shall be applied for
multiple work areas and workplaces and announces the availability of a model
form for the workplace chemical list. New §295.5 establishes standards
for employers, chemical manufacturers, and distributors to provide material
safety data sheets for hazardous chemicals. New §295.6 clarifies the
circumstances under which an employer is responsible for labeling hazardous
chemical containers. New §295.7 clarifies the scope of the written hazard
communication program and establishes standards for this document, the employee
education and training program, and training records. New §295.8 establishes
standards for employers and the department related to complaint investigations
and random compliance inspections. New §295.9 clarifies reporting requirements
regarding employee fatalities and injuries related to chemical accidents.
New §295.11 clarifies the procedures for employers to respond to written
notices of violation and summary letters related to informal conferences,
the conditions under which administrative penalties will be assessed, and
the department's options in assessing administrative penalties. Four severity
levels for violations and a penalty matrix are established and examples of
violations for each severity level are provided. New §295.12 establishes
standards for the workplace notice and clarifies employee rights. New §295.13
corrects an existing legal citation error in the Hazard Communication Act,
Health and Safety Code, Chapter 502, concerning standards for physician treatment.
The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the sections.
Change: Concerning §295.4(a), the department has deleted unnecessary
language in the last sentence.
Change: Concerning §295.4(b), the department has moved and revised
language from §295.2(17), the definition of "workplace," to new §295.4(b)
to clarify that subdivision of contiguous facilities into separate workplaces
may result in a requirement for multiple workplace chemical lists.
Change: Concerning §295.4(c), the department has replaced the term
"required" with the term "mandatory."
Change: Concerning §295.2(14), the definition of "label," the department
has deleted the phrase "and workplace chemical list" because this phrase may
be confusing to an employer who has hazardous chemicals that are not required
to be listed on the workplace chemical list.
Change: Concerning §295.2(15), the definition of the "OSHA Standard"
(the Hazard Communication Standard of the United States Department of Labor,
Occupational Safety and Health Administration (OSHA)), the department has
added this definition because the reference to this standard in §295.1
has been deleted and this federal law is referenced in other sections of the
rules.
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting changes.
Comment: Concerning the rules in general, three commenters questioned the
need for proposing changes to the existing rules.
Response: The rules were amended to ensure consistency between the rules
and the Health and Safety Code, Chapter 502. The reasons for the proposed
changes were set forth in the Proposed Preamble.
Comment: Concerning the rules in general, two commenters stated that the
rules should "be opened up for a full review and 90 day comment period."
Response: The department has reviewed and considered for readoption the
existing rules, as required by the General Appropriations Act, House Bill
1, Article IX, Rider 167. A Notice of Intention to Review for §§295.1
- 295.8 was published in the September 4, 1998, issue of the Texas Register
that stated comments would be accepted 30 days following the publication of
the notice. The department received no comments during this period. The department
also notes that the rule comment period was extended from 30 days to 60 days
by the Board of Health at the October, 1998 meeting.
Comment: Concerning the rules in general, one commenter recommended that
the department consider an effective date for the rules that provides additional
time for the regulated community to learn about the changes and achieve compliance.
The commenter also recommended that the department consider providing outreach
seminars on the rules for the regulated community.
Response: The department agrees with the commenter and has provided new
language in §295.1, establishing an effective date of September 1, 1999.
The department plans to provide outreach materials and seminars to the regulated
community prior to this date.
Comment: Concerning the rules in general, five commenters stated that the
rules were "too prescriptive."
Response: The department agrees in part with the commenters. The department
has revised some of the proposed language to allow employers more flexibility
in achieving compliance with the Health and Safety Code, Chapter 502 ("the
Act"). However, the department has retained some of the proposed language
in order to provide guidance to the regulated community on certain requirements
of the Act.
Comment: Concerning the rules in general, nine commenters stated that the
proposed rules would be burdensome and would have a fiscal impact on employers.
Response: The department agrees that certain sections of the proposed rules
would have expanded employer's duties beyond the minimum requirements of the
Act. The department has revised the language in the final rules to be consistent
with the Act and reduce the burden on employers. However, because the 1993
revisions to the Act need to be addressed in the final rules, the department
has maintained some of the proposed rules language which is deemed necessary
for employer guidance. The department notes that employers have been required
to comply with the Act's revised requirements since they became effective
in 1993. Therefore, the department has determined that the revised Act, rather
than the final rules, has had a fiscal impact on employers.
Comment: Concerning the rules in general, six commenters expressed concern
about whether the department had received recommendations for rules changes
from an advisory committee or other independent group.
Response: The department received recommendations for rules changes from
both the regulated community and the Hazard Communication Act Advisory Committee.
Comment: Concerning §295.1(a), two commenters stated that the proposed
purpose of the rules was in conflict with the compliance flexibility indicated
by the Act.
Response: The department agrees and has substituted the word "guidance"
for the phrase "specific criteria" in §295.1(a) to provide consistency
with the Act's purpose.
Comment: Concerning §295.1(b), one commenter was concerned that the
proposed changes would have the effect of allowing the department to enforce
the OSHA Standard and would be in conflict with the legislative intent of
the Act. Another commenter did not understand why the "SARA" (federal Superfund
Amendments and Reauthorization Act of 1986, Title III, also known as the Emergency
Planning and Community Right-to-Know Act) reference in §295.1(b) was
being proposed for deletion.
Response: The department agrees that proposed §295.1(b) is unnecessary
and could imply that the rules were exceeding the legislative intent of the
Act. Therefore, the department has deleted proposed §295.1(b). The department
proposed deleting the reference to "SARA" in §295.1(b) to clarify that
the Act no longer contains any community right-to-know requirements. During
the 1993 revisions to the Act, the community right-to-know requirements of
the original Act were moved to separate state laws.
Comment: Concerning §295.2(2), two commenters were concerned about
the volume of information needed for "appropriate hazard warnings" on small
secondary containers in laboratories.
Response: The department recognizes these concerns, but has determined
that the definition of "appropriate hazard warnings," in §295.2(2) is
necessary to ensure consistency with the OSHA Standard's definition. The department
has modified the language in the definition related to target organs to be
consistent with the OSHA Standard. The department agrees that employers may
need alternative methods of labeling in order to ensure that small container
labels conform to the OSHA Standard, but has determined that §295.6 is
the most appropriate section of the rules in which to include language on
this issue. The issue of labeling small containers of laboratory chemicals
is further addressed in the responses to proposed §295.6(a), (b), and
(c), now relettered as §295.6(c), (d), and (e).
Comment: Concerning §295.2(3), two commenters stated that they opposed
placing the responsibility of selection of appropriate PPE on the employer
because their institutions placed this responsibility on individual principal
investigators. Three commenters stated that the phrase "equipment that is
worn by" in §295.2(3) should be changed to indicate that the employer
is only responsible for providing the PPE, but not for ensuring that employees
wear it. Five commenters objected to including language in §295.2(3)
which specifies how the employer will determine what PPE is appropriate and
two commenters stated that the references to appropriate PPE should be removed
from §295.2(3) and proposed as a "stand-alone rule."
Response: The department agrees with the commenters concerning employer
responsibilities for PPE use and has clarified the language in §295.2(3)
to indicate the limitations of this responsibility. The department notes that
while the employer's responsibility for providing PPE may be delegated by
an employer to individual staff members, the Act states that the employer
is ultimately responsible for meeting this requirement. The department agrees
that the employer has responsibility for providing the PPE and training, but
does not have responsibility for ensuring that employees wear it. The department
disagrees with the objections to the parts of the definition which reference
industry standards, fit-testing, and functionality, since these factors are
critical in determining whether PPE is "appropriate." Therefore, the department
has retained these references in §295.2(3). The department also disagrees
with the suggestion for a "stand- alone" PPE rule, since employers need guidance
in these rules on what is meant in the Act by "appropriate personal protective
equipment."
Comment: Concerning §295.2(4), one commenter stated that the language
did not incorporate standard medical terminology.
Response: The department agrees with this recommendation and has revised
the language in §295.2(4) to medical terminology. The phrases "caused
by a chemical" and "other than drowning" have been in retained in §295.2(4)
to be consistent with the scope of the Act.
Comment: Concerning §295.2(5), one commenter suggested using the phrase
"with similar properties" instead of "according to their type of physical
and/or health hazards."
Response: The department agrees and has substituted the recommended language
in §295.2(5).
Comment: Concerning §295.2(6), two commenters requested that clarification
be offered on the Act's labeling requirements, with special provisions for
very small containers.
Response: The department agrees with the commenters' concerns and has added
the phrase "or contains multiple smaller containers of an identical hazardous
chemical" to §295.2(6). The changes in §295.2(6) and §295.6
will provide employers with greater flexibility with respect to labeling.
Comment: Concerning §295.2(10), two commenters were concerned that
the department was restricting the employer's methodology used for training
employees. One commenter also questioned the need for §295.2(10).
Response: The department agrees with the commenters concerning restrictions
on training methods and has modified §295.2(10) to allow employers greater
flexibility in selecting methods. The department has retained §295.2(10)
to clarify the differences between the "employee education and training program"
and the "written hazard communication program."
Comment: Concerning §295.2(11), one commenter was concerned that the
definition of "employer" would extend applicability of the Act to non-public
employers, including private hospitals. One commenter asked for clarification
in §295.2(11) regarding applicability to public universities, but also
questioned the need for expansion of the Act's definition.
Response: The department agrees with the commenters' concerns related to
the language in §295.2(11) and has modified the definition of "employer"
to clarify applicability of the Act to public employers, except as noted below.
The department has retained §295.2(11) to clarify the difference between
"individual facilities operated by an employer" and "the employer." The department
notes that the Act specifies in its definition of "employer" that it does
not apply to employers who are covered by the OSHA Standard, the federal Coal
Mine Health and Safety Act of 1969, or the federal Mine Safety and Health
Amendments Act of 1977. However, the Act also specifies that if any of these
federal laws are repealed, then the private employers previously covered by
these laws, including private hospitals, will be subject to the Act.
Comment: Concerning §295.2(13), two commenters stated that the last
sentence of the definition of "heath hazard" was redundant. One commenter
stated that the term "irritants" in §295.2(13) should be either deleted
or clarified because it has a broad meaning.
Response: The department disagrees with the commenters' recommendations
and has retained the proposed language in §295.2(13). The term "health
hazard" is not clearly defined in the Act because it is incorporated by reference
from the OSHA Standard. Because "health hazard" is a critical part of the
Act's definition of "hazardous chemicals" and will affect information used
in training and on hazardous chemical labels, the department has provided
this more complete definition in the final rules. The department has determined
that it is unnecessary to define all of the terms which are used in the OSHA
Standard's definition of "health hazard" because these terms are clearly defined
in either the Standard or its appendices. The term "irritant" has a very specific
and narrow meaning under the OSHA Standard.
Comment: Concerning §295.2(14), three commenters requested clarification
regarding container sizes that would require complete labeling because they
stated that some containers would be too small to bear the required label.
Another commenter stated an objection to the requirement in §295.2(14)
for the material safety data sheet (MSDS) name to appear on the container
label and recommended that the department allow the option of substituting
a common name for a hazardous chemical on the container label if this non-MSDS
name was more easily recognized in the research environment.
Response: The department agrees with the commenters' concerns about labeling
small containers. However, rather than changing the basic definition of "label"
in §295.2(14), the department has modified §295.6 to clarify the
employer options for labeling small containers. The department disagrees with
the recommendation to allow substitution of a non-MSDS name on the label of
a hazardous chemical since such action would conflict with the labeling requirements
of the Act.
Comment: Concerning proposed §295.2(15), one commenter recommended
against expanding the definition of "material safety data sheet (MSDS)" provided
in the Act. Nine commenters stated that the requirement in proposed §295.2(15)
for MSDSs to be manufacturer-specific would create an unnecessary burden in
maintaining these documents, especially with respect to laboratory chemicals.
Five commenters stated that the requirement to maintain the most recent manufacturer-specific
MSDS was also burdensome and unnecessary because many manufacturers regularly
update their MSDSs without making substantial changes to the hazard information.
Three commenters were concerned that proposed §295.2(15) would preclude
the use of electronic MSDS systems which might be purchased by an employer
to comply with the MSDS requirements of the Act and two of these commenters
recommended adding language to the definition which referenced the use of
"generic" MSDSs. Three commenters requested that the department provide definitions
for "appropriate MSDS" and "current MSDS."
Response: The department agrees with many of these comments and has deleted
the proposed definition for "MSDS." The department anticipates that this action
will provide employers with flexibility in obtaining appropriate MSDSs to
comply with the Act and will eliminate the need to define an "appropriate"
or "generic" MSDS. The department agrees that maintaining MSDSs that are not
manufacturer-specific may be an option for compliance when, in the opinion
of the department, the hazardous chemical in question is consistently manufactured
according to established industry standards by a number of different manufacturers
and the medical treatment information for exposure to the chemical is well
understood by and readily available to the medical community. The department
suggests that such MSDSs should be described as "substitute MSDSs," rather
than "generic MSDSs," to avoid confusion with the OSHA Standard. The department
notes that under the Act's requirements, any hazardous chemical product whose
formulation is unique to that product requires a manufacturer-specific MSDS.
The department has provided standards for "current" MSDSs in §295.5 that
will provide employers with greater flexibility to obtain appropriate MSDSs
to comply with the Act. The department also agrees that the use of commercially
available electronic MSDS systems are a convenient and efficient method for
maintaining MSDSs and the data provided in many of these systems is often
superior to some manufacturers' MSDSs.
Comment: Concerning §295.2(17), one commenter stated that the definition
was unclear and confusing and recommended that the department not expand on
the Act's definition of "workplace."
Response: The department agrees with the commenter and has modified §295.2(17)
to clarify the definition and delete unnecessary language. However, §295.2(17)
is necessary to clarify that workplaces may be subdivided at the employer's
discretion.
Comment: Concerning §295.2(18), one commenter stated that the definition
of "written hazard communication program" implied that all employers would
have to develop a written program for compliance with all aspects of the Act,
including those requirements that did not apply to employers. The commenter
suggested new language for this definition.
Response: The department agrees with the commenter and has modified the
definition of "written hazard communication program" using the suggested language.
Comment: Concerning the proposed repeal of the definition for "physical
hazard" in §295.2, one commenter stated that there was no clear definition
for either this term or the term "hazardous chemical."
Response: The department disagrees with the commenter. These terms were
clearly defined in the Act during the 1993 revisions and are therefore not
repeated in the rules. No changes were made as a result of the comment.
Comment: Concerning the proposed repeal of the definition for "work area"
in §295.2, five commenters questioned why the definition had been removed
and one commenter stated that this action would "change the way business is
conducted."
Response: The department disagrees with the commenters. "Work area" was
clearly defined in the Act during the 1993 revisions and is therefore not
repeated in the rules. This action should not affect how business is conducted.
No changes were made as a result of the comments.
Comment: Concerning §295.4(a), one commenter recommended deleting
the word "entire" from the second sentence because it could cause confusion.
Response: The department agrees and has made the recommended change.
Comment: Concerning §295.5(a), one commenter recommended deleting
the phrase "and appropriate" from the first sentence or to clarify what is
meant by "appropriate." Four commenters requested clarification on what is
meant by "maintain," "current," and "appropriate." One commenter asked how
his agency was supposed to keep MSDSs current for principal investigators
when incoming MSDSs were mailed to a central repository for the employer.
Response: The department agrees that the term "appropriate" needs clarification
and has revised the language in §295.5(a) to reference the Act's definition
of "MSDS." The department also agrees that employers need clarification on
"current" MSDSs and has added clarifying language to §295.5(a). The department
notes that the "current" MSDS must match the hazardous chemical by both the
identity and the formulation, since manufacturers sometimes reformulate their
products without changing the identity of the product on the label or the
corresponding MSDS. Therefore, the "current" MSDS will be the MSDS which matches
the hazardous chemical's name and formulation and which contains the most
recent significant hazard information for the formulation as determined by
the manufacturer. The department disagrees with the suggestions to clarify
in §295.5(a) what is meant by "maintain" or to define how employers will
maintain "current" MSDSs because such actions could limit an employer's flexibility
in achieving compliance.
Comment: Concerning §295.5(b), five commenters requested clarification
for the term "immediate." Four commenters suggested more flexible language
for this section.
Response: The department agrees that the language in §295.5(b) needed
clarification and flexibility and has revised the language in this section.
Comment: Concerning §295.5(c), one commenter stated that a 30 business
day time limit for requesting missing MSDSs would be more reasonable. This
commenter also recommended allowing use of a hazardous chemical pending receipt
of a missing MSDS. Three commenters expressed concerns about the implied requirement
in §295.5(c) to track receipt of incoming MSDSs.
Response: The department agrees that the proposed seven day time limit
in §295.5(c) may be unreasonable for some employers and has modified
the language to extend this time limit to 30 days. The department disagrees
with the recommendation to allow use of a hazardous chemical pending receipt
of the MSDS because such action could result in an employee's exposure to
the hazardous chemical. The Act, §502.017(b) requires employers to provide
to an employee, upon request, an MSDS for any hazardous chemical to which
an employee may be exposed, so discontinuing use of chemicals that lack MSDSs
is the only way for employers to ensure compliance with the Act. Therefore,
the department has retained the requirement in §295.5(c) for employers
to discontinue use of a hazardous chemical pending receipt of the chemical's
MSDS. The department notes that the Act, rather than the rules, establishes
a requirement for employers to ensure that MSDSs are maintained for all purchased
chemicals.
Comment: Concerning §295.5(d), two commenters stated that the department
could not enforce the section because it was an "issue of interstate commerce"
and one commenter questioned why a written request was required.
Response: The department disagrees with the commenters concerning the department's
authority to enforce §295.5(d). The Act, §502.006 requires chemical
manufacturers and distributors to provide appropriate MSDSs to employers who
acquire hazardous chemicals and requires these suppliers to respond to an
employer's written request for an MSDS in a timely manner. The intent of §295.5(d)
is to establish a reasonable standard for chemical manufacturers and distributors
to respond to such requests. Employers will have the flexibility to obtain
missing MSDSs from their suppliers or other sources using much more efficient
means than written requests, but if an employer fails to obtain a missing
MSDS through such other methods, then the employer is required by the Act,
§502.006(b) to make the request to the supplier in writing.
Comment: Concerning §295.5(e), five commenters expressed concern regarding
the proposed requirement for an employer to maintain a current MSDS, based
on the date that the chemical was received in the workplace.
Response: The department agrees with the commenters and has deleted the
first sentence of §295.5(e), which would have conflicted with the options
provided to employers in §295.5(a) regarding current MSDSs.
Comment: Concerning §295.6 in general, six commenters expressed concern
that the department was imposing additional duties on the employer that went
beyond the intent of the Act. One commenter stated that the employer should
only be held responsible for re-labeling a container when the manufacturer's
or distributor's label is "clearly erroneous" or "grossly incomplete."
Response: The department agrees with the commenters and has clarified the
language with regard to labeling primary containers in §295.6 to ensure
consistency with the Act. New §§295.6(a) and (b) contain language
that specifies that employers are responsible for re- labeling hazardous chemical
containers only when the original label from the manufacturer or distributor
has been removed or is illegible, or in cases where the label information
provided is determined to be inaccurate or incomplete with respect to the
OSHA Standard. The department agrees that it would be impractical for employers
to review the information on the labels of every incoming chemical container
to determine whether these labels conform to the OSHA Standard. The department
also recognizes that the Act does not require employers to have the education
or training required to recognize labels that contain highly technical errors.
Employers may rely on the accuracy of the chemical's MSDS for the information
needed for re-labeling primary containers that have lost their original labels
and for labeling secondary containers. New §295.6(b) clarifies that employers
may either obtain replacement labels from their suppliers or prepare their
own replacement labels.
Comment: Concerning proposed §295.6(a), now relettered as §295.6(c),
one commenter recommended simplifying the section to require an "appropriate
hazard warning" as defined in §295.2(2). Six commenters expressed concern
about the practicality of labeling small containers.
Response: The department agrees with the commenter regarding the standards
for hazard warnings on primary container labels and has revised §295.6(c)
to clarify that warnings that conform to the OSHA Standard will be adequate
to meet the labeling requirements of the Act. However, the department has
determined that the proposed definition of "appropriate hazard warning" would
be very restrictive to employers and has revised the language in §295.6(c)(2)
to provide the flexibility that is available to employers under the OSHA Standard.
The new language will allow employers to use alternative labeling systems
in lieu of using more detailed worded labels on containers, as long as the
employees receive training on the additional information that is available
through other information sources, including MSDSs. The department has also
provided new language in this section to clarify the circumstances under which
an employer must provide a replacement label. The department also agrees with
the commenters concerning the limitations of labeling small containers and
has added new language in relettered §§295.6(e) and (g) to provide
employers with more options to convey the required label information to employees.
Comment: Concerning proposed §295.6(b), now relettered as §295.6(d),
seven commenters stated that it would be impractical to meet the specified
labeling requirements for secondary containers, especially with respect to
labeling small secondary containers in laboratories.
Response: The department agrees that the proposed language in the section
was not consistent with the labeling requirements of the OSHA Standard and
has modified the language in §295.6(d)(2) to be consistent with §295.6(c)(2).
The department has also clarified in this subsection that the Act, §§502.004(f)(2)
and 502.007(b), provides exceptions to the labeling requirements for secondary
containers. These exceptions are for chemicals in laboratories that comply
with specific requirements of the Act and for portable containers intended
for the immediate use of the employee.
Comment: Concerning proposed §295.6(d), now relettered as §295.6(f),
two commenters questioned how the labeling requirements for stationary process
containers would be applied to laboratories.
Response: A stationary process container would be a secondary container.
Therefore, the exemption in the Act, §502.004(f)(2), would apply to such
containers in laboratories and an employer who complied with the requirements
of the Act, §502.004(f)(2), would not be required to label such containers.
No changes were made as a result of the comments.
Comment: Concerning proposed §§295.6(e) and (f), five commenters
stated that the proposed hazard warnings were too prescriptive and one commenter
noted that the proposed requirements were not consistent with the OSHA Standard.
Response: The department agrees with the commenters and has deleted proposed
§§295.6(e) and (f). The department has determined that the requirements
for "appropriate hazard warnings" or alternative methods of labeling that
comply with §§295.6(c) and (d) will provide adequate hazard warning
information which will be more easily understood by employees.
Comment: Concerning proposed §295.6(g), one commenter stated that
the proposed language was vague and confusing. Two commenters stated that
the proposed section's requirement for concise label information was contradicted
by the required level of label detail specified in other sections.
Response: The department agrees with the commenters and has deleted proposed
§295.6(g). Since the OSHA Standard requires concise label information,
this proposed section also was determined to be unnecessary.
Comment: Concerning proposed §295.6(h), now relettered as §295.6(g),
two commenters stated that the proposed language was too restrictive. Three
commenters stated that the OSHA Standard did not preclude the use of alternative
methods of labeling, such as the National Fire Protection Association (NFPA)
704m Standard and the Hazardous Materials Information Systems (HMIS) Standard.
Response: The department agrees with the commenters and has modified the
language in relettered §295.6(g) to provide consistency with the OSHA
Standard.
Comment: Concerning proposed §295.6(i), now relettered as §295.6(h),
four commenters stated that the language was unreasonable and one commenter
suggested that primary containers received prior to January 1, 1986, should
only require relabeling "if the label has been removed or defaced, or is grossly
inadequate." Two of the commenters were especially concerned about the requirement
to re-label older stocks of laboratory chemicals which were still in use.
Response: The department disagrees with the commenters and has retained
in relettered §295.6(h) the requirement for re-labeling chemicals which
were received prior to the effective date of the Act and which do not meet
the Act's requirements for labeling. However, the department has modified
the language in this section to clarify that pre-1986 stocks of laboratory
chemicals may not require re-labeling if the chemicals are in a laboratory
that complies with the requirements of the Act, §502.004(f)(2), or if
the existing labels meet the requirements of the Act.
Comment: Concerning §295.7(a), one commenter noted that not all employers
would be required to comply with all requirements of the Act and requested
that the term "all" in the first sentence of this subsection be deleted. This
commenter also objected to the requirement for the employer's written programs
to provide the names of locations where any required documents or equipment
would be stored and for the written programs to be specific to each workplace.
Three commenters requested that the term "action" be defined. Two commenters
objected to the requirement for the employer to provide training, since his
agency placed this responsibility on principal investigators.
Response: The department agrees with the comments regarding employers who
may not be required to comply with "all" requirements of the Act and has modified
the language in §295.7(a) to be consistent with the definition of "written
hazard communication program" in §295.2(18). The department also agrees
that the requirement for including in the written program the names of storage
locations for documents or equipment is unnecessary and would limit an employer's
flexibility in changing such locations. The department has modified the language
in §295.7(a) to require that written programs contain only a description
of the applicable requirement or section of the Act and a description of the
compliance steps that will be taken by the employer. This modified language
clarifies what was meant in proposed §295.7(a) by "action." The department
agrees that employers with multiple workplaces may wish to develop a standard
written hazard communication program that could be directly implemented or
modified to meet the needs of each individual workplace. Therefore, the department
has modified the last sentence of §295.7(a) to clarify the employer's
options in developing such written programs. The department disagrees with
the comments regarding responsibility for training. As with all requirements
of the Act, the employer has the ultimate responsibility to provide training
to employees, but may delegate this responsibility to others.
Comment: Concerning §295.7(b), one commenter stated that referring
to "each separate workplace" was confusing and unnecessary and suggested alternative
language. This commenter also requested clarification regarding whether having
electronic copies of the written hazard communication program available to
each workplace would meet the requirements of the Act. Two commenters suggested
that employers should only be required to have the written hazard communication
program available upon request. These commenters also noted that "separate
workplaces do not constitute separate locations" and questioned whether one
written program for multiple workplaces would meet the requirements of the
Act.
Response: The department agrees with the comments regarding the language
and has changed the wording in §295.7(b), using the commenter's suggestion.
The department has also added language to §295.7(b) that clarifies that
the written program may be maintained at the workplace as either a printed
or electronic copy. The department disagrees with the suggestion that employers
not be required to maintain a copy of the written program at each workplace
because this requirement is specified in the Act, §502.009(b). However,
this requirement does not preclude the development of a standard written program
which could be used for and maintained at multiple workplaces in either printed
or electronic form.
Comment: Concerning §295.7(c), one commenter recommended deleting
the section because it will create unnecessary enforcement issues as written.
Response: The department agrees with the commenter, but has determined
that §295.7(c) should be retained to provide a listing of topics from
the Act to be addressed in a written hazard communication program, if applicable.
The department has modified the language in §295.7(c) to make the listing
consistent with the requirements of the Act and to clarify that employers
need only address those listed requirements that apply to their workplaces.
Comment: Concerning §295.7(d), one commenter stated that the phrase
"may result in an exposure" should be changed to "will result in an exposure."
Response: The department disagrees and has retained the language in §295.7(d)
to ensure consistency with the Act, §502.009(c). No changes were made
as a result of the comment.
Comment: Concerning §295.7(e), one commenter stated that the language
was too prescriptive and could prevent employers from tracking training using
electronic methods. The commenter recommended that the subsection be deleted
or revised. Three commenters questioned how on-going training of employees
could be documented to meet the proposed requirements and one of these commenters
questioned whether research laboratories would be exempted from the training
record requirement. One of these commenters also recommended that the employer
should not be required to record the categories of chemicals covered in training.
Response: The department agrees and has modified the language to provide
greater flexibility for employers in maintaining training records. The department
agrees that employers may have difficulty in tracking on-going training of
employees, but notes that the Act requires maintenance of records for "each
training session." This requirement does not preclude an employer from providing
additional, undocumented training on an on-going basis, but does necessitate
maintaining records that will demonstrate that employees have received training
on the basic subjects required for compliance with minimum standards of the
Act. Research laboratories are not exempt from the Act and are required to
maintain training records for their employees. However, certain staff in research
laboratories may be exempted from these requirements. For example, graduate
and post-doctoral students performing research that is part of an educational
curriculum and who are not paid directly by the educational institution are
not considered to be "employees" under the Act. The department disagrees with
the commenter concerning the record of chemical categories and has retained
the proposed language of §295.7(e)(3). The department notes that the
employer will have flexibility in establishing the chemical categories to
be used in training and the department has determined that such categories
are "subjects covered in the training session," as referenced in the Act,
§502.009(g).
Comment: Concerning §295.7(f), two commenters questioned whether an
employee had to be trained on chemical categories for chemicals to which the
employee is not exposed.
Response: The department notes that the last sentence of §295.7(f)
adequately clarifies that employees need only be trained on "appropriate"
chemical categories, based on "chemicals to which the employee may be exposed"
and has retained the language of this subsection. No changes were made as
a result of the comments.
Comment: Concerning §§295.7(g) and (h), three commenters stated
that the number of chemical categories was excessive and that the goal of
training by categories should be to provide training appropriate to the hazard.
One of these commenters stated that training regarding the proposed number
of chemical categories would require a significant and unnecessary increase
in training time.
Response: The department agrees and has deleted §§295.7(g) and
(h) to provide employers with greater flexibility in determining the appropriate
chemical hazard categories for training.
Comment: Concerning §295.7(k), now relettered as §295.7(i), two
commenters stated that the reference to Title 40 Code of Federal Regulations
(CFR), Part 311 was not accurate and should be revised or deleted. The commenters
stated that Part 311 required training on hazard communication issues, was
equivalent to compliance with the OSHA Standard, and was therefore equivalent
to the training requirements of the Act.
Response: The department disagrees with the commenters and has retained
relettered §295.7(i). The intent of relettered §295.7(i) is to clarify
that training that meets the requirements of Title 40 CFR, Part 311 is equivalent
to the specific type of training required for employees of emergency service
organizations under the Act, §502.009(h). The training required under
the Act, §502.009(h) is unique in that it is training for emergency exposures
to hazardous chemicals which are not purchased by the employer or routinely
handled or used by the employee. No changes were made as a result of the comments.
Comment: Concerning §295.8, one commenter stated that the proposed
language in §295.8(a) may encourage disgruntled employees or others to
make invalid complaints against an employer. Concerning §§295.8(a)
and (b), the commenter also questioned whether the department had a specific
reason to be concerned about denial of entry for compliance inspections.
Response: The department disagrees with the commenter regarding invalid
complaints and has retained the language in §295.8(a). The Act does not
limit the department to investigating only written complaints or proving the
validity of a complaint in advance of a compliance inspection of an employer.
The department also recognizes an employee's need for anonymity in filing
a complaint in a situation where the employer may retaliate against a known
complainant. The department has retained the language in §§295.8(a)
and (b) concerning denial of entry because the department's representatives
have been denied access and violations have been alleged as a result. No changes
were made as a result of the comments.
Comment: Concerning §§295.11(c) and (d), one commenter recommended
revising the language in §295.11(c) to clarify that an employer may respond
to a written notification of violations by requesting an informal conference.
The commenter also objected to the term "acceptable" in §§295.11(c)
and (d) because it suggests that the department may "demand more than compliance."
Response: The department agrees with the commenter and has revised the
language in §295.11(c) concerning the informal conference option. The
department also agrees that the term "acceptable" is misleading and has deleted
this term from §§295.11(c) and (d).
Comment: Concerning §295.11(e), one commenter recommended revising
the classification of severity levels of violations from "minor," "serious,"
"severe," and "critical" to "administrative," "serious," and "willful." The
commenter also questioned what was meant by "a violation of any employee's
rights under the Act" and why such a violation should be at the "critical"
level."
Response: The department disagrees with the commenter concerning the classification
of severity levels and has retained these terms in §295.11(e). The proposed
severity level classifications are consistent with the terminology for classifications
used by other enforcement programs within the department. The department agrees
that violations of some of the employee rights specified in the Act, §502.017,
should not be classified as "critical" violations and has deleted this reference
in the definition of a "critical violation."
Comment: Concerning §§295.11(g) and (h), one commenter questioned
whether the Act authorizes the department to impose a per day penalty and
noted that the department is authorized to seek a civil injunction to stop
continuing violations.
Response: The department disagrees that a civil injunction is, in all cases,
an appropriate action for continuing violations and has retained the language
in §§295.11(g) and (h). With regard to administrative penalties,
the Act, §502.014(m) states "Each day a violation continues may be considered
a separate violation." No changes were made as a result of the comment.
Comment: Concerning §295.11(i) in general, three commenters recommended
deleting the subsection, stating that it would not improve worker safety and
would "weaken the standard." One commenter stated that the examples were unnecessary
and not consistent with the proposed penalty scheme set out in §295.11(e).
Five commenters stated that the levels of violations in §295.11(i) would
not apply equally to Texas employers because it did not take into consideration
the number of employees requiring training, the risk to the employee that
is presented by the violation, or the number of MSDSs required to be maintained.
Five commenters recommended against the department mixing numbers and percentages
in its examples of violations classified by severity level. Two commenters
questioned how §295.11(i)(1)(F) would apply if an employer wished to
maintain older MSDSs for historical exposure data. Concerning §295.11(3)(G),
three commenters questioned whether an employer would be cited for a violation
if an MSDS was not provided by the manufacturer or distributor within seven
days of the employer's request, and one commenter questioned whether the administrative
penalty associated with this violation would be assessed to the employer or
the chemical manufacturer or distributor. One commenter recommended that §295.11(i)(3)(B)
should indicate a range of four to ten containers and that §295.11(i)(3)(D)
should indicate a range of 11% to 25% of employees. One commenter recommended
that §§295.11(i)(3)(B) and 295.11(i)(4)(B) should include the phrase
"in a workplace" to be consistent with the wording stated in §295.11(i)(2)(A).
Response: The department disagrees with the commenters concerning the need
for §295.11(i) and the correlation of its examples with the penalty scheme
in §295.11(e). The department has retained the subsection, but has made
modifications in the language and deletion of certain subsections in §295.11(i)
that were determined to be necessary to ensure consistency with changes in
other sections. The intent of §295.11(i) is to provide guidance to the
department and employers on the types of violations which may be classified
into each of the severity levels. The examples in §295.11(i) will help
to ensure greater consistency in enforcement without limiting the department's
options to consider the risk to employees posed by special circumstances.
The department notes that providing such examples of violations in rules is
consistent with other enforcement programs in the department. The department
agrees with the commenters regarding the problem of ensuring equal application
of the severity levels for violations in a variety of employer situations.
To address this problem, the department has made recommendations to its representatives
to conduct random compliance inspections of workplaces, random employee interviews,
and representative sampling of compliance documents. These practices will
help to ensure that employers are evaluated on their overall compliance records.
The department disagrees with the commenters regarding mixing numbers and
percentages in the examples of violations and has retained the language in
these subsections. When making these decisions, the department considered
the level of risk which the example violation posed for employees and then
chose either numbers or percentages to describe the violation, as appropriate.
Concerning the issue of an employer's retention of outdated MSDSs, an employer
would still be considered to be in compliance with the MSDS requirements of
the Act as long as the employer has maintained at least one copy of each current
MSDS for each hazardous chemical in the workplace. With regard to the issue
of manufacturers or distributors failing to provide requested MSDSs within
seven business days of a request, the department has determined that the employer
would not be cited for a violation related to a missing MSDS as long as the
employer had written proof of the request for the MSDS and the employer had
made the request within 30 days of receipt of the chemical. In cases where
the employer had written proof of the request for the MSDS and the chemical
manufacturer or distributor failed to provide the MSDS within seven business
days of the employer's written request, the department would take an enforcement
action against the chemical manufacturer or distributor. The department agrees
with the suggestions for wording changes to §§295.11(i)(3)(B), 295.11(i)(3)(D),
and 295.11(i)(4)(B) and has made the recommended changes to these sections.
Comment: Concerning §295.12(b), two commenters stated that the requirement
for capital letters in the required "Notice to Employees" poster was prescriptive
and recommended "common English grammar rules for capitalization."
Response: The department disagrees with the commenters and has retained
the language in §295.12(b). The department is given authority under the
Act, §502.008(c) to provide a suitable form of notice and capitalization
of the title of this notice is considered necessary by the department to make
it more easily observed. No changes were made as a result of the comments.
Comment: Concerning §295.12(g), one commenter stated that responsibility
for maintenance or storage of PPE was not covered by the Act and three commenters
stated that this responsibility should belong to the employee. Three commenters
recommended deleting and one commenter recommended clarification of the last
sentence of the subsection.
Response: The department agrees with the commenters and has revised the
language in the last sentence of §295.12(g) to clarify that the employer
is responsible for training employees regarding how to maintain and store
PPE, but the employer does not have the responsibility for maintenance and
storage of this equipment. The department notes that employers should exercise
caution in providing previously used PPE to employees because, in circumstances
where such equipment has not been properly maintained or stored, the equipment
may not be considered to be "appropriate PPE," as described in §295.2(3).
The comments regarding the proposed rules received by the department during
the comment period were submitted by representatives of the City of Austin,
the Association of Texas Hospitals and Health Care Organizations, the Texas
A&M University System, Texas A&M International University, the Texas
Agricultural Experiment Station, the College of Engineering at Texas A&M
University, Tarleton State University, Baylor College of Dentistry, the University
of Texas System, the University of Texas at Austin, the Health and Safety
Services Office at the University of Texas Medical Branch at Galveston, the
Animal Resources Center of the University of Texas Medical Branch at Galveston,
and department staff. None of the commenters were against the rules in their
entirety, however they expressed concerns, asked questions and expressed recommendations
for change as discussed in the summary of comments.
Subchapter A. Hazard Communication