1. (a) Inspections may be conducted by the commissioner or his designated representative to determine if persons are in violation of the Hazard Communication Act, Texas Civil Statutes, Article 5182b, or rules adopted by the Texas Board of Health to enforce the Act, §§295.1-295.7 of this title (relating to Purpose and Scope; Definitions; Responsibility for Implementation of Program; Labeling; Posting of Workplace Notice; Compliance Deadlines; and Training). (See 11 TexReg 850 and 10 TexReg 4889.) Persons found to be in violation will be notified in writing of the violation.
2. (b) Inspections are not necessary to confirm violations in all instances. Failure to annually file with the department the required workplace chemical list and addenda or, for nonmanufacturing employers only, to file the required notice of training, will be considered violations of the Act that do not necessarily require an inspection. Other violations may be confirmed by the department through correspondence with authorized company officials and may not warrant an inspection.
3. (c) Persons found to be in violation of the Act are subject to administrative penalties authorized by the Act, §13(c). Each violation will be assessed as a separate penalty. The total penalty will be the sum of all individual violation penalties.
4. (d) A person notified in writing of a violation must do one of the following within 14 days; correct the violation, pay an administrative penalty, or request a hearing. A written response electing one of these actions must be received by the Administrator, Occupational Health Program, on or before the 15th day following the receipt of the written notification of violations. A request for a hearing must specify the points of disagreement and relief sought. Hearings shall be held in accordance with §§1.21-1.33 of this title (relating to Formal Hearing Procedures).
5. (e) Penalties will be due on the 15th day following the date that a written notification of violations is received by the person, unless the Occupational Health Program receives an acceptable written response that each violation has been abated or that a hearing has been requested. The written response must list separately each violation and must be signed by a duly authorized company official. An inappropriate or unacceptable response will not alleviate the necessity of paying the penalty when due.
6. (f) Followup inspections may be made to confirm the status of abatement of violations. Any violation found on such followup inspection will be subject to an additional administrative penalty. If the first 14-day notice period has expired, that penalty will be due and a second or subsequent notice will be provided for determining second or subsequent penalty due dates.
7. (g) The amount of penalty per violation will be based on the seriousness of the violation.

8. (h) The degree of seriousness of each violation will be classified in one of three levels:

   1. (1) a minor violation, which is a minimal threat to employees or the public and/or temporary inability to fully comply;
   2. (2) a serious violation, which is a threat or hazard to employees or the public;
   3. (3) a critical violation, which has caused, or is likely to cause harm to employees or the public.
9. (i) Penalties will be charged based on the following schedule.
10. (j) Individual violations may be reduced or enhanced based on consideration of the history of previous violations, good faith efforts made to correct violations promptly and on any other consideration that justice may require. A maximum reduction or enhancement of 50% per individual violation may be considered, based on the facts presented to the department.

11. (k) The following are examples of violation seriousness categories and are neither exhaustive nor controlling:

    1. (1) minor violation-level I:

       1. (A) failure to post the worker notice on one of five bulletin boards;
       2. (B) failure to list a hazardous chemical which was known to be a significant hazard by the employer or manufacturing employer;
       3. (C) failure to adequately label a hazardous material that was obtained before the Act went into effect;
       4. (D) failure to send an addendum to the workplace chemical list to the Texas Department of Health;
       5. (E) inadvertent failure of a manufacturer or distributor to provide an up-to-date material safety data sheet to a school district or other employer covered by the Act;

    2. (2) serious violation-level II:

       1. (A) failure to inform the local fire department of appropriate contact persons at the company;
       2. (B) failure to train new employees on the hazards of their jobs;
       3. (C) failure to compile a workplace chemical list;
       4. (D) failure to provide employees a warning and information on hazardous chemicals being used in the workplace by a contractor, with employees subsequently complaining of irritation caused by vapors;
       5. (E) failure to train and protect office workers exposed to ammonia from a blueline machine;

    3. (3) critical violation-level III:

       1. (A) refusal to provide hazard information to an employee on request;
       2. (B) failure to initiate a training program;
       3. (C) failure to provide requested information to the local fire department;
       4. (D) failure to provide information on a hazardous chemical to a health professional for diagnosis of treatment of a patient;
       5. (E) failure to keep a file of material safety data sheets on hazardous chemicals normally present in the workplace.

Source Note:The provisions of this §295.8 adopted to be effective October 16, 1986, 11 TexReg 4159.