1. (a) Complaints and investigations.

   1. (1) The department has the right to inspect. The commissioner or his designated representatives may enter a facility at reasonable times to conduct compliance inspections. Advance notice is not required. It is a violation of these rules for a person to interfere with, deny, or delay an inspection or investigation conducted by a department representative.
   2. (2) The commissioner or his designated representative shall investigate in a timely manner a complaint relating to an alleged violation of the 505 Act, the 506 Act, the 507 Act or these rules. Such complaints do not have to be submitted to the department in writing and may be anonymous. An inspection based on a complaint is not limited to the specific allegations of the complaint. A facility operator who refuses to allow such an investigation shall be in violation of these rules. Complaints are not necessary to conduct an inspection.
   3. (3) The department may find multiple violations by a facility operator based on specific requirements of the 505 Act, the 506 Act, the 507 Act or these rules.
   4. (4) Upon request from a representative of the commissioner, a facility operator shall make or allow photocopies of documents to be made and permit the representative to take photographs to verify the compliance status of the employer. Such requests may be made during a compliance inspection or a follow-up request after an inspection.

2. (b) Administrative penalties.

   1. (1) Inspections may be conducted by the commissioner or his designated representative to determine if persons are in violation of the 505 Act, the 506 Act, the 507 Act or these rules. Persons found to be in violation will be notified in writing of any alleged violations and proposed penalties or other enforcement action.
   2. (2) Manufacturing facility operators found to be in violation of the 505 Act or these rules are subject to administrative penalties, as authorized by the 505 Act, to be administered in accordance with the procedures detailed in the 505 Act, §§505.010, 505.011, and 505.012, and this section.
   3. (3) Public employer facility operators found to be in violation of the 506 Act or these rules are subject to administrative penalties, as authorized by the 506 Act, to be administered in accordance with the procedures detailed in the 506 Act, §§506.010, 506.011, and 506.012, and this section.
   4. (4) Nonmanufacturing facility operators found to be in violation of the 507 Act or these rules are subject to administrative penalties, as authorized by the 507 Act, to be administered in accordance with the procedures detailed in the 507 Act, §§507.009, 507.010, and 507.011, and this section.
   5. (5) Each violation may be assessed as a separate penalty. The total penalty for a violation is the sum of all per day violation penalties.
   6. (6) 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 violation is received by the facility operator, unless the department receives an acceptable written response that documents that each violation has been corrected, an informal conference has been requested, or a formal hearing has been requested. If an informal conference is held, the facility operator must respond as set forth in paragraph (8) of this subsection within 10 days after the facility operator receives a summary letter following the informal conference.
   7. (7) If a violation involves a failure to make a good faith effort to comply with these rules by a manufacturing facility or a nonmanufacturing facility, the commissioner may assess the administrative penalty at any time.
   8. (8) The written response to the department's summary letter from the facility operator must address each violation separately and must provide the documentation requested by the department or an acceptable alternative agreed to by the department. An inappropriate or unacceptable response may result in a penalty being assessed for the underlying violations.

   9. (9) Violations will be classified in one of three severity levels:

      1. (A) a minor violation is related to a minor records keeping deficiency;
      2. (B) a serious violation is related to failure to pay filing fees for required submissions, minor omissions of information from Tier Two forms, or substantial records keeping deficiencies; or
      3. (C) a critical violation is related to substantial omissions of information from Tier Two forms, failure to submit required information, or denial of entry.
   10. (10) For manufacturing facilities, a penalty may be assessed, not to exceed $500 a day for each day a violation continues, with a total penalty not to exceed $5,000 for each violation.
   11. (11) For public employer facilities and nonmanufacturing facilities, a penalty may be assessed, not to exceed $50 a day for each day a violation continues, with a total penalty not to exceed $1,000 for each violation.
   12. (12) Individual penalties may be reduced or enhanced based on consideration of the history of previous violations, the degree of hazard to the health and safety of the public, good-faith efforts made to correct violations promptly, and on any other consideration that justice may require.
   13. (13) Failure to file a Tier Two form with the department will be considered a violation that may not require an inspection. Other violations may be confirmed by the department through correspondence with authorized company officials and may not warrant an inspection.
   14. (14) At its option, the department may accept appropriate documentation provided by the facility as evidence of compliance status.

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

       1. (A) minor violations having a penalty of $100 per day for manufacturing facilities and $10 per day for public employer facilities and nonmanufacturing facilities:

          1. (i) failure to sign or date Tier Two forms filed with the department;
          2. (ii) failure to maintain a copy of an updated Tier Two form at the facility; or
          3. (iii) failure to provide adequate chemical description information required for each hazardous chemical on the Tier Two form.

       2. (B) serious violations having a penalty of $300 per day for manufacturing facilities and $30 per day for public employer facilities and nonmanufacturing facilities:

          1. (i) failure to include significant information regarding reportable quantity hazardous chemicals on any Tier Two form submitted to the department, the fire chief, or the LEPC;
          2. (ii) failure to file an initial Tier Two form with the department, the fire chief, or the LEPC, within 90 days after the date on which the operator begins operation or the facility exceeds the reporting threshold for a previously unreported hazardous chemical;
          3. (iii) failure to submit the appropriate Tier Two form filing fee to the department;
          4. (iv) failure to provide significant information required for the Texas Tier Two Electronic Filing Cover Sheet; or
          5. (v) failure to provide a map when required for submission of a Tier Two form.

       3. (C) critical violations having a penalty of $500 per day for manufacturing facilities and $50 per day for public employer facilities and nonmanufacturing facilities:

          1. (i) failure to include significant information related to hazardous chemicals on a Tier Two form submitted to the department, the fire chief, or the LEPC;
          2. (ii) failure to submit a required Tier Two form to the department, the fire chief, or the LEPC;
          3. (iii) interfering with, denying or delaying an inspection or investigation conducted by a representative of the department;
          4. (iv) interfering with, denying or delaying an on-site inspection of a facility conducted by the fire chief or the fire chief's representative;
          5. (v) upon request from a fire chief or LEPC, failure to provide such additional information as is needed for planning purposes; or
          6. (vi) upon request from a citizen, failure to provide within the time limits specified in §295.182(c)(1) of this title a copy of the facility's existing workplace chemical list or a modified Tier Two form using a 500-pound threshold for all hazardous chemicals at the facility.

3. (c) Fees.

   1. (1) The department shall charge a fee for each required annual and initial Tier Two form. The fee must accompany the Tier Two form when submitted to the department.

   2. (2) Annual fees for the annual and initial Tier Two forms are based on the number of hazardous chemicals present at a facility and shall be:

      1. (A) For a manufacturing facility:

         1. (i) $100 for each required submission having no more than 25 hazardous chemicals;
         2. (ii) $200 for each required submission having no more than 50 hazardous chemicals;
         3. (iii) $300 for each required submission having no more than 75 hazardous chemicals;
         4. (iv) $400 for each required submission having no more than 100 hazardous chemicals; or
         5. (v) $500 for each required submission having more than 100 hazardous chemicals.

      2. (B) For a public employer facility or nonmanufacturing facility:

         1. (i) $50 for each required submission having no more than 75 hazardous chemicals or hazardous chemical categories; or
         2. (ii) $100 for each required submission having more than 75 hazardous chemicals or hazardous chemical categories.

   3. (3) For the purpose of minimizing fees, the department shall provide for consolidated filing of multiple Tier Two forms for facility operators if:

      1. (A) each of the Tier Two forms contain fewer than 25 chemicals;
      2. (B) each of the Tier Two forms are filed by a single operator or a single operator's authorized representative, with an identical operator's name and address on each Tier Two form in the consolidated filing;
      3. (C) all consolidated Tier Two forms are mailed to the department in the same package; and

      4. (D) the number of required submissions that are consolidated do not exceed the following:

         1. (i) for manufacturing facilities, no more than two required submissions; or
         2. (ii) for public employer facilities or nonmanufacturing facilities, no more than seven required submissions.
   4. (4) Fees paid by mail must be paid by check or money order (cash payments are not acceptable) to the Department of State Health Services and must be addressed to: Department of State Health Services, Tier Two Chemical Reporting Program, ZZ109-180, P.O. Box 149200, Austin, Texas 78714-9200. Checks or money orders must contain the following information: "Budget ZZ109 Fund 180."
   5. (5) No receipt will be provided for payment of fees which are mailed, but a canceled check may be considered adequate proof of payment.

   6. (6) The department may refund a fee overpayment to a facility operator provided that:

      1. (A) the facility operator provides, in writing, proof of payment, the date(s) on which the required submissions and fees were sent to or received by the department, the circumstances that caused the overpayment, and the reasons why it would have been considered an overpayment under the rules in force at the time of the original filing;
      2. (B) the facility operator requests the refund in writing within 90 calendar days of the date on which the required submissions and fee were received by the department; and
      3. (C) the facility operator pays the department a processing fee of $20 per refund.

Source Note:The provisions of this §325.3 adopted to be effective July 25, 2006, 31 TexReg 5802; transferred effective January 1, 2020, as published in the December 13, 2019 issue of the Texas Register, 44 TexReg 7715.