S 635 Session 109 (1991-1992)
S 0635 General Bill, By Land and I.E. Lourie
A Bill to amend Title 48, Code of Laws of South Carolina, 1976, by adding
Chapter 51 so as to enact the Hazardous Chemicals Right to Know Act.
02/12/91 Senate Introduced and read first time SJ-9
02/12/91 Senate Referred to Committee on Labor, Commerce and
Industry SJ-9
A BILL
TO AMEND TITLE 48, CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 51 SO AS TO ENACT THE
HAZARDOUS CHEMICALS RIGHT TO KNOW ACT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 51
Hazardous Chemicals Right to Know Act
Article 1
General Provisions
Section 48-51-10. This chapter may be cited as the `Hazardous
Chemicals Right to Know Act'.
Section 48-51-20. As used in this chapter:
(1) `Chemical manufacturer' means a manufacturing facility
classified in Standard Industrial Classification (SIC) Codes 20 through
39 where chemicals are produced for use or distribution in South
Carolina.
(2) `Chemical name' means the scientific designation of a
chemical in accordance with the nomenclature system developed by the
International Union of Pure and Applied Chemistry (IUPAC), or the
Chemical Abstracts Service (CAS) rules of nomenclature, or a name
which clearly identifies the chemical for the purpose of conducting a
hazard evaluation.
(3) `Common name' means a designation or identification such as
a code name, code number, trade name, brand name, or generic name
used to identify a chemical other than by its chemical name.
(4) `Distributor' means a business, other than a chemical
manufacturer or importer, which supplies hazardous chemicals to other
distributors or to purchasers.
(5) `Employee' means a person who is employed by an employer
under normal operating conditions.
(6) `Employer' means a person engaged in business who has
employees, including the State and its political subdivisions but
excluding an individual whose only employees are domestic workers or
casual laborers who are hired to work at the individual's residence.
(7) `Facility' means one or more establishments, factories, or
buildings located at one contiguous site in South Carolina.
(8) `Fire chief' means fire chief or fire marshal or emergency
response coordinator in the absence of a fire chief or fire marshal for the
appropriate local fire department.
(9) `Fire company' means the company or firehouse or other
administrative unit within the fire department located closest to the
facility.
(10) `Fire department' means the fire department having jurisdiction
over the facility.
(11) `Hazardous chemical' means an element, chemical compound, or
mixture of elements or compounds which is a physical hazard or health
hazard as defined in subsection (c) of the SCOSHA Standard or a
hazardous substance as defined in 29 CFR Section 1910.1200.
(12) `Hazardous substance list' means the list required by Section
48-51-30.
(13) `Hazardous substance trade secret' means a formula, plan, pattern,
device, process, production, information, or compilation of information
which is not patented and is known only to the employer, the employer's
licensees, the employer's employees, and certain other individuals, and
used or developed for use in the employer's business, and which gives
the employer possessing it the opportunity to obtain a competitive
advantage over businesses who do not possess it, or the secrecy of which
is certified by an appropriate official of the federal government as
necessary for national defense purposes. The chemical name and
chemical abstracts service number of a substance must be considered a
trade secret only if the employer can establish that the identity or
composition of the substance may not be ascertained readily without
undue expense by analytical techniques, laboratory procedures, or other
lawful means available to a competitor.
(14) `Label' means a written, printed, or graphic material displayed on
or affixed to containers of hazardous chemicals.
(15) `Manufacturing facility' means a facility classified in SIC Codes
20 through 39 which manufactures or uses a hazardous chemical in
South Carolina.
(16) `Material safety data sheets' or 'MSDS' means chemical
information sheets drawn up in conformity to standards for material
safety data sheets in the Occupational Safety and Health Act of 1970 (15
U.S.C. 651, et seq.) and regulations promulgated under this act.
(17) `Nonmanufacturing facility' means a facility in South Carolina
other than a facility in SIC Codes 20 through 39, the State of South
Carolina and its political subdivisions, and volunteer emergency service
organizations whose members may be exposed to chemical hazards
during emergency situations.
(18) `SCOSHA standard' means the currently adopted Hazard
Communication Standard adopted by the Occupational Safety and
Health Division of the South Carolina Department of Labor.
(19) `Storage and container' has the ordinary meaning. However, it
does not include pipes used in the transfer of substances or the fuel tanks
or self-propelled internal combustion vehicles.
(20) `Commissioner' means the Commissioner of Labor.
Section 48-51-30. (A) All employers who manufacture, process,
use, store, or produce hazardous chemicals shall compile and maintain
a hazardous substance list which contains the following information for
each hazardous chemical normally used or stored in the facility in
quantities of fifty-five gallons or five hundred pounds, whichever is
greater:
(1) the chemical name or the common name used on the
MSDS or container label;
(2) the approximate range of quantity of the chemical usually
stored at the facility, using the following ranges:
Class A, which includes quantities of less than fifty-five
gallons or five hundred pounds;
Class B, which includes quantities of between fifty-five
gallons to five hundred fifty gallons and quantities of between five
hundred pounds and five thousand pounds;
Class C, which includes quantities of between five hundred
fifty gallons and five thousand, five hundred gallons and quantities
between five thousand pounds and fifty thousand pounds;
Class D, which includes quantities of greater than five
thousand, five hundred gallons or fifty thousand pounds; and
(3) the area in the facility in which the hazardous chemical
normally is stored and to what extent the chemical may be stored at
altered temperature or pressure.
(B) The hazardous substance list must be updated quarterly if
necessary, but not less often than annually. If a chemical is deleted
from, or added to, the hazardous substance list, or if the quantity changes
sufficiently to cause the chemical to be in a different class as defined in
subsection (A), the employer shall update the hazardous substance list
to reflect those changes as soon as practicable but in any event within
thirty days of the change.
(C) The hazardous substance list may be prepared for the facility
as a whole, or for each area in a facility where hazardous chemicals are
stored, at the option of the employer but must include only chemicals
used or stored in South Carolina.
Section 48-51-40. (A) Chemical manufacturers and distributors
shall provide material safety data sheets to manufacturing and
nonmanufacturing purchasers of hazardous chemicals in South Carolina
for each hazardous chemical purchased.
(B) Employers shall maintain the most current MSDS received
from manufacturers or distributors for each hazardous chemical
purchased. If a MSDS has not been provided by the manufacturer or
distributor for chemicals on the hazardous substance list at the time the
chemicals are received at the facility, the employer shall request one in
writing from the manufacturer or distributor within thirty days after
receipt of the chemical. If the employer does not receive a MSDS within
thirty days after his written request, he shall notify the commissioner of
the failure by the manufacturer or distributor to provide the MSDS.
Section 48-51-50. Existing labels on incoming containers of
hazardous chemicals may not be removed or defaced. All containers of
hazardous substances must be designated clearly as hazardous.
Section 48-51-60. (A) An employer who normally stores at a
facility a hazardous chemical in an amount of at least fifty-five gallons
or five hundred pounds, whichever is greater, shall provide the fire chief
of the fire department having jurisdiction over the facility, in writing:
(1) the name and telephone number of a knowledgeable
representative of the employer who may be contacted for further
information or in case of an emergency;
(2) in municipalities with populations of less than ten thousand
advise him of the availability of the hazardous substance list upon
written request; and
(3) in municipalities with populations of ten thousand or more, a
copy of the hazardous substance list.
(B) Each employer shall provide a copy of the hazardous
substance list to the fire chief in accordance with the provisions of
subsection (A). The employer shall notify the fire chief in writing of any
updates that occur in the previously submitted hazardous substance list
as provided in Section 48-51-30(B).
(C) The fire chief or his representative, upon request, must be
permitted on-site inspections at reasonable times of the chemicals
located at the facility on the hazardous substance list for the sole purpose
of preplanning fire department activities in the case of an emergency and
insuring by inspection the usefulness and accuracy of the hazardous
substance list and labels.
(D) Employers shall provide to the fire chief, upon written request
of the fire chief, a copy of the MSDS for a chemical on the hazardous
substance list.
(E) Upon written request of the fire chief, an employer shall
prepare an emergency response plan for the facility which includes, but
is not limited to, facility evacuation procedures, a list of emergency
equipment available at the facility, and copies of other emergency
response plans, such as the contingency plan required under South
Carolina hazardous waste management regulations. A copy of the
emergency response plan or a prefire plan or emergency response 99an
required under applicable South Carolina or federal statute, rule, or
regulation, upon written request by the fire chief, must be given to the
fire chief.
(F) The fire chief, in consultation with the employer, shall make
information from the hazardous substance list, the emergency response
plan, and MSDS's available to members of the fire company having
jurisdiction over the facility and to personnel responsible for
preplanning emergency response, police, medical, or fire activities.
Section 48-51-70. (A) Complaints of violations of this article
must be filed in writing with the commissioner. A complaint received
in writing from a fire chief relating to alleged violations of this article
must be investigated in a timely manner by the commissioner or his
designated representative.
(B) A designated representative of the commissioner, upon
presentation of appropriate credentials to the employer, has the right of
entry into a facility at reasonable times to inspect and investigate
complaints within reasonable limits and in a reasonable manner.
(C) Employers violating the provisions of this article must be
given fourteen days after receipt of written notification of the violation
to comply. Employers not complying within fourteen days following
receipt of written notification of a violation are subject to civil penalties
of not more than one thousand dollars for each violation imposed by the
commissioner after an opportunity to be heard. Each day's violation
constitutes a separate offense.
Section 48-51-80. No employer shall discharge, or cause to be
discharged, or otherwise discipline or in any manner discriminate against
an employee at the facility because the employee has assisted the
commissioner or his representative or the fire chief or his representative
who may make or is making an inspection under Section 48-51-60(C) or
48-51-70(B), or has testified or is about to testify in a proceeding under
this article, or has used the provisions of Section 48-51-210.
Section 48-51-90. (A) An employer who believes that all or any
part of the information required under Section 48-51-30, 48-51-40,
48-51-60(B), or 48-51-60(D) is a hazardous substance trade secret may
withhold the information if:
(1) hazard information on chemicals the identity of which is
claimed as a hazardous substance trade secret is provided to the fire
chief who shall hold it in confidence; and
(2) the employer claims that the information is a hazardous
substance trade secret.
(B) A person in South Carolina may request in writing that the
commissioner review in camera an employer's hazardous substance trade
secret claim. If the commissioner finds that the claim is other than
completely valid, this finding is appealable under subsection (D) of this
section. If the commissioner finds that the claim is valid, he shall
determine whether the nonconfidential information is sufficient for the
fire chief to fulfill the responsibilities of his office. If the commissioner
finds that the information is not sufficient, he shall direct the employer
to supplement the information with other information to provide the fire
chief with sufficient information to fulfill the responsibilities of his
office. This finding is appealable under subsection (D).
(C) The commissioner and the fire chief shall protect from
disclosure all information coming into their possession when the
information is marked by the employer as confidential, and they shall
return all information so marked to the employer at the conclusion of
their determination by the commissioner. A person who has access to
a hazardous substance trade secret solely pursuant to this section and
who discloses it knowing it to be a hazardous substance trade secret to
a person not authorized to receive it is guilty of a felony and, if
knowingly or negligently disclosed to a person not authorized, is subject
to civil action for damages and injunction by the owner of the hazardous
substance trade secret.
(D) The employer, fire chief, or person making the original
request who is an aggrieved party has thirty days after receipt of
notification by the commissioner of his findings under subsection (B) to
request an administrative hearing on the determination. The hearing
must be held in a manner similar to that provided for in Article 3,
Chapter 23 of Title 1 and the decision upon the request of an aggrieved
party is subject to the judicial review provided for by that article. These
administrative and judicial hearings must be conducted in camera to
assure the confidentiality of the information being reviewed.
Section 48-51-100. (A) Where a treating health care provider
determines that a medical emergency exists and the specific chemical
identity of a hazardous chemical is necessary for emergency or first-aid
treatment, the chemical manufacturer, importer, or employer shall
disclose immediately the specific chemical identity of a hazardous
substance trade secret substance to that treating physician or nurse,
regardless of the existence of a written statement of need or a
confidentiality agreement. The chemical manufacturer, importer, or
employer may require a written statement of need and a confidentiality
agreement as soon as circumstances permit. The confidentiality
agreement may:
(1) restrict the use of the information to the health purposes
indicated in a written statement of need;
(2) provide for appropriate legal remedies in the event of a breach
of the agreement, including stipulation of a reasonable pre-estimate of
likely damages; and
(3) not include requirements for the posting of a penalty bond.
The parties are not precluded from pursuing noncontractual remedies to
the extent permitted by law.
(B) In nonemergency situations, a chemical manufacturer,
importer, or employer, upon request, shall disclose a specific chemical
identity, otherwise permitted to be withheld under this section, to a
health professional providing medical or other occupational health
services to exposed persons if the request is in writing and states the
medical need for the information. The employer may require that the
health care provider sign a confidentiality agreement before release of
the information. The parties are not precluded from pursuing
noncontractual remedies to the extent permitted by law.
(C) If the chemical manufacturer, importer, or employer denies a
written request for hazardous substance trade secret release, or does not
provide this information within thirty days, the Department of Labor
shall initiate the trade secret claim determination process pursuant to
Section 48-51-90.
Article 3
Community Right to Know
Section 48-51-210. (A) A person in South Carolina may request
in writing from the employer a list of chemicals used or stored at the
facility. The request must include the name and address of the person
making the request and a statement of the purpose for the request. If the
person is requesting the list on behalf of or for the use of an
organization, partnership, or corporation, he also shall disclose the name
and business address of the organization, partnership, or corporation.
The request may include, at the option of the employer, a statement to
the effect that the information may be used only for the purpose stated.
The employer shall furnish to the person making the request a list
containing, at a minimum, all chemicals included on the hazardous
substance list, the class of each chemical as defined in Section
48-51-30(A)(2), and a MSDS for each chemical for which a MSDS is
available and is requested. Whenever an employer has withheld a
chemical under the provisions of Section 48-51-90 from the information
provided under this section, the employer shall state that the information
is being withheld and, upon request, shall provide the MSDS for the
chemical. Additional information may be furnished to the person
making the request at the option of the employer. The employer shall
provide, at a fee not to exceed the cost of reproducing the materials, the
materials requested within ten working days of the date the employer
receives the written request for information.
(B) If the employer fails or refuses to provide the information
required under subsection (A), the person requesting the information
may request in writing that the commissioner review the request. The
commissioner may conduct an investigation in the same manner as
provided in Section 48-51-70(B). Following the investigation, the
commissioner shall make appropriate findings. Either the employer or
the person making the initial request may request an administrative
hearing pursuant to Article 3, Chapter 23 of Title 1. This request for an
administrative hearing must be submitted to the commissioner within
thirty days following the commissioner making his findings. The
commissioner within thirty days of receiving the request shall hold an
administrative hearing to consider the request for information under
subsection (A) of this section. This hearing must be held as provided for
in Article 3, Chapter 23 of Title 1. If the commissioner finds that the
request complies with the requirements of subsection (A) of this section,
the commissioner shall direct that the employer provide to the person
making the request a list containing, at a minimum, all chemicals used
or stored at the facility included on the hazardous substance list, the
class of each chemical as defined in Section 48-51-30(A)(2), and a
MSDS for each chemical for which a MSDS is available and is
requested and, in his discretion, may assess civil penalties as provided
in Section 48-51-70(C). It is a defense to the disclosure if the employer
proves that the information has been requested directly or indirectly by,
or in behalf of, a competitor of the employer, or that the information is
a hazardous substance trade secret, or that the request did not comply
with the requirements of subsection (A).
(C) An order by the commissioner under subsection (B) is subject
to judicial review as provided under Article 3, Chapter 23 of Title 1.
Article 5
Implementation
Section 48-51-220. The provisions of this chapter do not apply to
chemicals in or on:
(1) hazardous substances while being transported in interstate
commerce into or through this State;
(2) products intended for personal consumption by employees in
the facilities;
(3) retail food sale establishments and all other retail trade
establishments, exclusive of processing and repair areas, except that the
employer shall comply with the provisions of Section 48-51-60(A)(1);
(4) a food, food additive, color additive, drug, or cosmetic as
these terms are defined in the Federal Food, Drug and Cosmetic Act (21
U.S.C. 301, et seq.);
(5) a laboratory under the direct supervision or guidance of a
technically qualified individual provided:
(a) labels on containers of incoming chemicals are not removed
or defaced;
(b) MSDS's received by the laboratory are maintained and
made accessible to employees and students;
(c) the laboratory is not used primarily to produce hazardous
chemicals in bulk for commercial purposes; and
(d) the laboratory is an independent operation not affiliated
with a manufacturing or nonmanufacturing facility and the operator
complies with the provisions of Section 48-51-60(A)(1);
(6) a farming operation which employs ten or fewer full-time
employees, except that if a hazardous chemical in an amount in excess
of fifty-five gallons or five hundred pounds, whichever is greater, is
stored normally at the farming operation, the employer shall comply
with the provisions of Section 48-51-60(A)(1);
(7) distilled spirits, tobacco, and untreated wood products; and
(8) medicines used directly in patient care in health care facilities
and health care facility laboratories."
SECTION 2. This act takes effect upon approval by the Governor.
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