Current Status Introducing Body:House Bill Number:3089 Primary Sponsor:Rogers Committee Number:20 Type of Legislation:GB Subject:Hazardous Chemicals Right to Know Act Residing Body:House Current Committee:Agriculture, Natural Resources, and Environmental Affairs Companion Bill Number:635 Computer Document Number:3089 Introduced Date:Jan 08, 1991 Last History Body:House Last History Date:Jan 08, 1991 Last History Type:Introduced and read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Rogers Waites Whipper Type of Legislation:General Bill
Bill Body Date Action Description CMN
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3089 House Jan 08, 1991 Introduced and read first 20
time, referred to Committee
3089 House Dec 27, 1990 Prefiled, referred to 20
Committee
View additional legislative information at the LPITS web site.
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:
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.
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.
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.