SECTION 295.11. Administrative Penalties

(a) Inspections may be conducted by the commissioner or his representative to determine if an employer is in violation of the Act or the rules. An employer will be notified in writing of any alleged violations. The employer shall send a written response to the department within 15 business days of receipt of the notification. The employer's response must conform to at least one of the options listed in the notification from the department.

(b) Employers who do not respond to the written notice from the department in accordance with subsection (a) of this section shall be subject to administrative penalties. Each violation of the Act may be cited separately in the written notice and a separate penalty may be proposed for each citation. Each day a violation continues may be considered a separate violation.

(c) Penalties shall be due after an order is issued by the commissioner. An order may be issued on or after the 16th business day following the date that a written notification of violations is received by the employer, unless the department receives a written response which documents that each violation has been corrected or that an informal conference or a formal hearing has been requested. If an informal settlement conference is requested, the employer must respond that each violation has been corrected within 11 business days after the employer receives a summary letter following the informal conference.

(d) The written response from the employer must address each violation separately and must provide the documentation requested by the department or an alternative agreed to by the department. An inappropriate or unacceptable response may result in a penalty being assessed for the underlying violations.

(e) Violations will be classified in one of four severity levels:

(1) a minor violation is related to a minor records keeping deficiency;

(2) a serious violation is related to failure to take an action that poses a threat of harm to any employee or a substantial records keeping deficiency;

(3) a severe violation is related to failure to take an action that poses a substantial threat of harm to any employee or a major records keeping deficiency; or

(4) a critical violation is related to failure to take an action that has caused harm or is likely to cause significant harm to any employee.

(f) Penalty amounts will be assessed based on the following schedule:

Attached Graphic

(g) Proposed penalties for individual violations may be reduced or enhanced by the department based on consideration of the history of previous violations, good faith efforts made to correct violations, duration of the violation, or any other considerations that justice may require. A maximum reduction or enhancement of 50% per individual proposed penalty may be considered, based on the facts presented to the department.

(h) Follow-up inspections may be made to confirm the status of violations. In cases where the department determines that one or more specific violations of the Act are ongoing, the department may issue a written notice to the employer proposing a per day penalty for each violation.

(i) Examples of violations for the various severity levels include, but are not limited to:

(1) Minor violation:

(A) failure to update the workplace chemical list as needed; failure to maintain previous workplace chemical lists for 30 years; or failure to develop the current workplace chemical list;

(B) failure to include one to five required elements in employee training records for one or more training sessions. Each employee name, training subject, instructor's name, and the date of the training session is a separate element;

(C) having a written hazard communication program which fails to describe how one to three of the criteria specified in §295.7(c) of this title (relating to Written Hazard Communication Program and Employee Education and Training) will be met;

(D) failure to post the workplace notice specified in §295.12 of this title (relating to Employee Notice; Rights of Employees) in up to 25% of the locations where notices are normally posted in the workplaces covered by an inspection;

(E) failure to maintain consistent names for hazardous chemicals on MSDSs, labels, and the workplace chemical list; or

(F) failure to maintain a current MSDS for one hazardous chemical in one workplace.

(2) Serious violation:

(A) failure to provide the proper identity or required hazard information on replacement or secondary labels for up to three containers of hazardous chemicals in a workplace;

(B) failure to provide a replacement or secondary label on a hazardous chemical container;

(C) failure to maintain five or more required elements in employee training records for one or more training sessions. Each employee name, training subject, instructor's name, and the date of the training session is considered a separate element;

(D) failure to post the workplace notice specified in §295.12 of this title in 26% to 99% of the locations where notices are normally posted in the workplaces covered by an inspection;

(E) failure to provide up to 10% of employees in the workplaces covered during an inspection the training required under the Act, §502.009(c);

(F) having a written hazard communication program which fails to describe how four to six of the criteria specified in §295.7(c) of this title will be met;

(G) failure to maintain current MSDSs for more than one and less than 6.0% of the hazardous chemicals in one workplace which are surveyed during an inspection; or

(3) Severe violation:

(A) failure to post the notice to employees specified in §295.12 of this title in any of the locations where employee notices are normally posted in any workplace;

(B) failure to provide the proper identity or required hazard information on replacement or secondary labels of four to ten containers of hazardous chemicals in a workplace;

(C) failure to provide replacement or secondary labels on up to five hazardous chemical containers;

(D) failure to provide 11% to 25% of employees in the workplaces covered during an inspection the training required under the Act, §502.009(c);

(E) having a written hazard communication program which fails to describe how more than six of the criteria specified in §295.7(c) of this title will be met;

(F) failure to maintain current MSDSs for 6.0% to 10% of the hazardous chemicals in one workplace which are surveyed during an inspection;

(G) failure by a chemical manufacturer or distributor to provide an MSDS to an employer within three business days of receipt of the employer's written request; or

(H) failure to report an incident to the department as required under the Act, §502.012.

(4) Critical violation:

(A) intentionally removing or defacing a label on a primary container of a hazardous chemical or maintaining another product's label on a hazardous chemical container;

(B) failure to provide the proper identity or required hazard information on replacement or secondary labels of more than ten containers of hazardous chemicals in the workplace;

(C) failure to provide replacement or secondary labels on more than five hazardous chemical containers;

(D) failure to provide more than 25% of employees in the workplaces covered during an inspection the training required under the Act, §502.009(c);

(E) denial by an employer to allow a representative of the department to conduct a compliance inspection;

(F) failure to maintain current MSDSs for greater than 10% of the hazardous chemicals in one workplace which are surveyed during an inspection;

(G) failure to provide, at the request of an employee, a copy of an MSDS for a hazardous chemical to a physician or emergency responder for purposes of treating any employee who may have suffered a chemical exposure; or

(H) a request or a requirement for an employee to waive any rights provided by the Act, §502.107.

Source Note: The provisions of this §295.11 adopted to be effective September 1, 1999, 24 TexReg 3711; amended to be effective July 3, 2003, 28 TexReg 4914