Texas Administrative Code
Title 25 - HEALTH SERVICES
Part 1 - DEPARTMENT OF STATE HEALTH SERVICES
Chapter 289 - RADIATION CONTROL
Subchapter D - GENERAL
Section 289.205 - Hearing and Enforcement Procedures
Universal Citation: 25 TX Admin Code ยง 289.205
Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. This section governs the following in accordance with the Texas Radiation Control Act (Act), the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, and the Formal Hearing Procedures, §§ 1.21, 1.23, 1.25, and 1.27 of this title (relating to the Texas Board of Health):
(1) proceedings for the granting, denying,
renewing, transferring, amending, suspending, revoking, or annulling of a:
(A) license or certificate of
registration;
(B) accreditation of
a mammography facility; or
(C)
industrial radiographer certification;
(2) determining compliance with or granting
of exemptions from the requirements of this chapter, order, or condition of the
license or certificate of registration;
(3) assessing administrative penalties;
and
(4) determining propriety of
other agency orders.
(b) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.
(1) Administrative penalty--A monetary
penalty assessed by the agency in accordance with the Texas Radiation Control
Act (Act), §401.384, to emphasize the need for lasting remedial action and
to deter future violations.
(2)
Administrative Law Judge (ALJ)--Administrative law judge from the State Office
of Administrative Hearings.
(3)
Applicant--A person seeking a license, certificate of registration,
accreditation of mammography facility, or industrial radiographer
certification, issued in accordance with the provisions of the Act and the
requirements in this chapter.
(4)
Certified industrial radiographer--An individual who meets the definition of
radiographer as stated in §
289.255(c)
of this title (relating to Radiation Safety Requirements and Licensing and
Registration Procedures for Industrial Radiography).
(5) Commissioner--The commissioner of the
Texas Department of State Health Services.
(6) Contested case--A proceeding in which the
agency determines the legal rights, duties, or privileges of a party after an
opportunity for adjudicative hearing.
(7) Director--The director of the radiation
control program in accordance with the agency's jurisdiction.
(8) Hearing--A proceeding to examine an
application or other matter before the agency in order to adjudicate rights,
duties, or privileges.
(9) Informal
Conference--A meeting held by the department with a person to discuss the
following:
(A) safety, safeguards, or
environmental problems;
(B)
compliance with regulatory, license condition, or registration condition
requirements;
(C) proposed
corrective measures including, but not limited to, schedules for
implementation; and
(D) enforcement
options available to the department.
(10) Interested person--A person who
participates in a hearing concerning a contested case but who is not admitted
as a party by the ALJ.
(11) Major
amendment--An amendment to a license issued in accordance with the requirements
of § 289.260 of this title (relating to Licensing of Uranium Recovery and
Byproduct Material Disposal Facilities) that:
(A) reflects a transfer of ownership of the
licensed facility;
(B) authorizes
enlargement of the licensed area beyond the boundaries of the existing
license;
(C) authorizes a change of
the method specified in the license for disposal of byproduct material as
defined in the Act, §401.003(3)(B); or
(D) grants an exemption from any provision of
§ 289.260 of this title.
(12) Notice of violation--A written statement
prepared by the department of one or more alleged infringements of a legally
binding requirement.
(13) Order--A
specific directive contained in a legal document issued by the
agency.
(14) Party--A person
designated as such by the ALJ. A party may consist of the following:
(A) the agency;
(B) an applicant, licensee, registrant,
accredited mammography facility, or certified industrial radiographer;
and
(C) any person
affected.
(15) Person
affected--A person who demonstrates that the person has suffered or will suffer
actual injury or economic damage and, if the person is not a local government,
is:
(A) a resident of a county, or a county
adjacent to the county, in which radioactive material is or will be located;
or
(B) doing business or has a
legal interest in land in the county or adjacent county.
(16) Preliminary report--A document prepared
by the agency containing the following:
(A) a
statement of facts on which the agency bases the conclusion that a violation
has occurred;
(B) recommendations
that an administrative penalty be imposed on the person charged;
(C) recommendations for the amount of that
proposed penalty; and
(D) a
statement that the person charged has a right to a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(17) Radiation and Perpetual Care Account--An
account established for the purposes described in the Act,
§401.305.
(18) Requestor--A
person claiming party status as a person affected.
(19) Severity level--A classification of
violations based on relative seriousness of each violation and the significance
of the effect of the violation on the occupational or public health or safety
or the environment.
(20)
Violation--An infringement of any rule, license or registration condition,
order of the agency, or any provision of the Act.
(c) Procedures for licensing actions in accordance with the Act, §401.054.
(1)
Except as provided in subsections (d) - (f) of this section, when the agency
grants, renews, denies, transfers, or amends any specific license for the
possession of radioactive materials, or grants exemptions from requirements of
this chapter, orders, or licenses in accordance with the Act, the agency shall,
no later than 30 days following the end of the month in which the action was
taken, submit notice of the action for publication in the Texas
Register. The action taken will remain in full force and effect unless
and until modified by subsequent action of the agency.
(2) Any person who considers himself/herself
a person affected by an agency action described in paragraph (1) of this
subsection or any applicant/licensee may request a hearing by submitting a
written request to the director within 30 days after the notice is published in
the Texas Register.
(A) The
request for a hearing must contain the following:
(i) name and address of the
person/applicant/licensee who considers himself/herself affected by agency
action;
(ii) identification of the
subject license;
(iii) reasons why
the person/applicant/licensee considers himself/herself affected;
(iv) relief sought; and
(v) name and address of the attorney if the
applicant/licensee or requestor is represented by an attorney.
(B) Failure to submit a written
request for a hearing within 30 days could result in denial of party status and
render the agency action final.
(3) Either the applicant/licensee or the
agency may contest the standing of a requestor as a person affected by motion
filed with the ALJ no later than ten days prior to the hearing. The requestor
has the burden of proof in a hearing to determine whether the requestor is a
person affected.
(4) The ALJ may
designate parties at the commencement of the hearing on the merits.
(5) A hearing may be scheduled by the agency
regardless of whether a request for a hearing has been received.
(d) Special procedures for issuing, renewing, or amending byproduct material licenses in accordance with § 289.260 of this title.
(1) When the
agency determines that the issuance or renewal, in accordance with §
289.260 of this title, of a license to process materials resulting in byproduct
material or to dispose of byproduct materials as defined in the Act,
§401.003(3)(B), will have a significant impact on the human environment,
the agency shall prepare or secure a written analysis of the impact and make it
available to the public for written comment at least 30 days before a public
hearing, if any, on the issuance or renewal of the license.
(2) At least 30 days prior to the issuance of
a new license, renewal, or major amendment, a notice of such action will be
published in the following:
(A)
Texas
Register; and
(B) a
newspaper published in each county in which the proposed facility is located
or, in which the proposed facility will be located. The applicant/licensee
shall do the following:
(i) cause notice of
the proposed action to be published and pay for the publication of the
newspaper notice(s); and
(ii) file
proof of publication required in this subparagraph with the agency within 30
days of publication. An affidavit by the publisher accompanied by a printed
copy of the notice as published shall be conclusive evidence of
publication.
(3) The notice referenced in paragraph (2) of
this subsection shall contain at least the following:
(A) statement identifying the location of the
proposed facility and a summary of the proposed actions;
(B) availability of an environmental analysis
for the proposed facility; and
(C)
offer of an opportunity for a hearing to any person affected.
(4) When a hearing is requested in
writing within 30 days after publication of the notice described in paragraph
(2) of this subsection, the procedures described in subsection (c)(3) and (4)
of this section and Formal Hearing Procedures, §§
1.21,
1.23,
1.25, and
1.27 of
this title apply. Failure to submit a written request for a hearing in the form
specified by subsection (c)(2) of this section within 30 days may result in no
hearing being held and the proposed agency action being taken.
(5) A hearing may be scheduled by the agency
regardless of whether a request for a hearing has been received.
(e) Special procedures for issuing or renewing licenses to process or store radioactive waste from other persons in accordance with § 289.254 of this title (relating to Licensing of Radioactive Waste Processing and Storage Facilities).
(1) At least 30 days prior to issuance or
renewal of a license to process or store radioactive waste from other persons,
in accordance with § 289.254 of this title, a notice of such action will
be published in the following:
(A)
Texas Register; and
(B) a newspaper published in each county in
which the proposed facility is located or, in which the proposed facility will
be located. The applicant/licensee shall do the following:
(i) cause notice to be published and pay for
the publication of the newspaper notice(s); and
(ii) file proof of publication of the notice
required in paragraph (1)(B) of this subsection with the agency within 30 days
of publication. An affidavit by the publisher accompanied by a printed copy of
the notice as published shall be conclusive evidence of publication.
(2) The notice
specified in paragraph (1) of this subsection shall contain at least the
following:
(A) the agency's intent to issue
or renew a license in accordance with § 289.254 of this title;
(B) location of the proposed
facility;
(C) in the case of a
Category III storage or processing facility, the availability of an
environmental analysis for each proposed activity the agency determines has a
significant impact on the human environment; and
(D) opportunity for a person affected to
request a hearing.
(3) A
hearing will be held only when requested, unless scheduled by the agency on its
own motion. When a hearing is requested in writing by the date stated in the
notice described in paragraph (1) of this subsection, the procedures described
in subsection (c)(3) and (4) of this section and the Formal Hearing Procedures,
§§
1.21,
1.23,
1.25, and
1.27 of
this title apply. Failure to submit a written request for a hearing in the form
prescribed in subsection (c)(2) of this section on or before the stated date
could result in denial of party status and in issuance or renewal of the
license by the commissioner.
(A) Notice of
the hearing shall be published in the following:
(i)
Texas Register;
and
(ii) a newspaper published in
each county in which the proposed facility is located or, in which the proposed
facility will be located.
(B) Notice of the hearing shall contain the
subject, time, date, and location of the hearing.
(C) The applicant/licensee shall cause notice
to be published and pay for the publication of the newspaper
notice(s).
(D) The
applicant/licensee shall file proof of publication of the notice required in
subparagraph (A)(ii) of this paragraph with the agency at least ten days before
the hearing. An affidavit by the publisher accompanied by a printed copy of the
notice as published shall be conclusive evidence of publication.
(E) If no newspaper is published in the
county or counties in which the proposed facility is to be located, a written
copy of the notice of hearing shall be posted at the courthouse door and five
other public places in the immediate locality to be affected for at least 30
days prior to the beginning of the hearing.
(F) The return of service by the sheriff or
constable, or the affidavit of any credible person made on a written copy of
the notice so posted showing the fact of the posting and filed with the agency
at least ten days prior to the hearing date shall be conclusive evidence of
posting.
(G) The applicant/licensee
shall give written notice of the hearing by certified mail, addressed to the
last known address, to persons shown on the current county tax records as
owning property adjacent to the proposed site. The written notice shall contain
the same information described in subparagraph (B) of this paragraph.
(i) The applicant/licensee shall furnish the
agency with a list of names and addresses of the adjacent property owners no
later than ten days before the hearing.
(ii) The list of names and addresses will be
deemed accurate and valid if obtained from the current county tax records of
the county where the adjacent property is located as of the mailing date of the
notice of hearing. The information shall be certified by an appropriate county
official.
(iii) The
applicant/licensee shall certify to the mailing of the notice of hearing by
certified mail, and proof of mailing to the proper address or the receipt shall
be accepted at the hearing as conclusive evidence of the fact of the
mailing.
(H) Failure to
comply with the provisions of subparagraphs (A)(ii), (E), and (G) of this
paragraph may result in denial of the license.
(f) Special procedures for amending waste licenses in accordance with § 289.254 of this title.
(1) If the agency amends a license to process
or store radioactive waste, in accordance with § 289.254 of this title,
the amendment will take effect immediately.
(2) Notice of amendment shall be published
one time in the following:
(A)
Texas
Register;
(B) a newspaper
of general circulation in the county or counties in which the licensed activity
is located. The licensee shall file with the agency, within 30 days of
publication, proof of publication of the notice.
(3) The licensee shall cause notice to be
published and pay for publication of the newspaper notice(s).
(4) An affidavit from the publisher
accompanied by a printed copy of the notice as published shall be conclusive
evidence of publication.
(5) The
notice shall contain the following:
(A)
identity of the licensee and the license amended;
(B) a concise statement of the substance of
the amendment; and
(C) opportunity
for a person affected to request a hearing.
(6) The agency shall notify any person who
has submitted an advance, written request to be notified of any proposed
amendment to the license. Proof of mailing to the proper address shall be
conclusive evidence of the agency's compliance.
(7) A person who considers himself/herself a
person affected may request the agency to hold a hearing by writing the
director, in the manner provided by subsection (c)(2) of this section, no later
than 30 days after the notice is published. Failure to submit a written request
for a hearing within 30 days could result in denial of party status and render
the agency action final.
(8) Upon
receipt of a request for hearing, the agency or the licensee may follow the
procedures set out in subsection (c)(3) and (4) of this section to contest
standing.
(9) Notice of a hearing
on the merits shall be given in accordance with appropriate provisions of
subsection (e)(3) of this section.
(g) Revocation of accreditation of mammography facilities.
(1) An accreditation
of a mammography facility may be revoked, for any of the following:
(A) any material false statement in the
application or any statement of fact required in accordance with the
Act;
(B) conditions revealed by
such application or statement of fact or any report, record, inspection, or
other means that would warrant the agency to refuse to grant an accreditation
of mammography facility on an original application; or
(C) violation of, or failure to observe any
of the terms and conditions of the Act, this chapter, or order of the
agency.
(2) Before the
agency revokes an accreditation of mammography facility, the agency shall give
notice by personal service or by certified mail, addressed to the last known
address, of the facts or conduct alleged to warrant the revocation by
complaint, and order the accredited mammography facility to show cause why the
mammography facility accreditation should not be revoked. The accredited
mammography facility shall be given an opportunity to request a hearing on the
matter no later than 30 days after service of the notice.
(3) Any accredited mammography facility
against whom the agency contemplates an action described in paragraph (1) of
this subsection may request a hearing by submitting a written request to the
director within 30 days of service of the notice.
(A) The written request for a hearing must
contain the following:
(i) statement
requesting a hearing;
(ii) name,
address, and identification number of the accredited mammography facility
against whom the action is being taken.
(B) Failure to submit a written request for a
hearing within 30 days will render the agency action final.
(h) Denial of an application for a license, certificate of registration, accreditation of a mammography facility, or industrial radiographer certification.
(1) When the agency contemplates denial of an
application for a license, certificate of registration, accreditation of a
mammography facility, or industrial radiographer certification, the licensee,
registrant, mammography facility seeking accreditation, or certified industrial
radiographer shall be afforded the opportunity for a hearing. Notice of the
denial shall be delivered by personal service or certified mail, addressed to
the last known address, to the licensee, registrant, mammography facility
seeking accreditation, or certified industrial radiographer.
(2) Any applicant, licensee, registrant,
mammography facility seeking accreditation, or certified industrial
radiographer against whom the agency contemplates an action described in
paragraph (1) of this subsection may request a hearing by submitting a written
request to the director within 30 days of service of the notice.
(A) The written request for a hearing must
contain the following:
(i) statement
requesting a hearing; and
(ii) name
and address of the applicant, licensee, registrant, mammography facility
seeking accreditation, or certified industrial radiographer;
(B) Failure to submit a written
request for a hearing within 30 days will render the agency action
final.
(i) Compliance procedures for licensees, registrants, certified industrial radiographers, and other persons.
(1) A
licensee, registrant, certified industrial radiographer, or other person who
commits a violation(s) will be issued a notice of violation. The person
receiving the notice shall provide the agency with a written statement and
supporting documentation by the date stated in the notice describing the
following:
(A) steps taken by the person and
the results achieved;
(B)
corrective steps to be taken to prevent recurrence; and
(C) the date when full compliance was or is
expected to be achieved. The agency may require responses to notices of
violation to be under oath.
(2) The terms and conditions of all licenses
and certificates of registration shall be subject to amendment or modification.
A license, certificate of registration, or industrial radiographer
certification may be modified, suspended, or revoked by reason of amendments to
the Act, or for violation of the Act, the requirements of this chapter, a
condition of the license, certificate of registration, or an order of the
agency.
(3) Any license,
certificate of registration, or industrial radiographer certification may be
modified, suspended, or revoked in whole or in part, for any of the following:
(A) any material false statement in the
application or any statement of fact required in accordance with provisions of
the Act;
(B) conditions revealed by
such application or statement of fact or any report, record, or inspection, or
other means that would warrant the agency to refuse to grant a license,
certificate of registration, or industrial radiographer certification on an
original application; or
(C)
violation of, or failure to observe any of the terms and conditions of the Act,
this chapter, or of the license, certificate of registration, or industrial
radiographer certification or order of the agency; or
(D) existing conditions that constitute a
substantial threat to the public health or safety or the environment.
(4) If another state or federal
entity takes an action such as modification, revocation, or suspension of the
license, certificate of registration, or industrial radiographer certification,
the agency may take a similar action against the licensee, registrant, or
certified industrial radiographer.
(5) When the agency determines that the
action provided for in paragraph (8) of this subsection or subsection (j) of
this section is not to be taken immediately, the agency may offer the licensee,
registrant, or certified industrial radiographer an opportunity to attend an
informal conference to discuss the following with the agency:
(A) methods and schedules for correcting the
violation(s); or
(B) methods and
schedules for showing compliance with applicable provisions of the Act, the
rules, license or registration conditions, or any orders of the
agency.
(6) Notice of
any informal conference shall be delivered by personal service, or certified
mail, addressed to the last known address. An informal conference is not a
prerequisite for the action to be taken in accordance with paragraph (8) of
this subsection or subsection (j) of this section.
(7) Except in cases in which the occupational
and public health, or safety requires otherwise, no license, certificate of
registration, or industrial radiographer certification shall be modified,
suspended, or revoked unless, prior to the institution of proceedings
therefore, facts or conduct that may warrant such action shall have been called
to the attention of the licensee, registrant, or certified industrial
radiographer in writing, and the licensee, registrant, or certified industrial
radiographer shall have been afforded an opportunity to demonstrate compliance
with all lawful requirements.
(8)
When the agency contemplates modification, suspension, or revocation of the
license, certificate of registration, or industrial radiographer certification,
the licensee, registrant, or certified industrial radiographer shall be
afforded the opportunity for a hearing. Notice of the contemplated action,
along with a complaint, shall be given to the licensee, registrant, or
certified industrial radiographer by personal service or certified mail,
addressed to the last known address.
(9) Any applicant, licensee, registrant, or
certified industrial radiographer against whom the agency contemplates an
action described in paragraph (8) of this subsection may request a hearing by
submitting a written request to the director within 30 days of service of the
notice.
(A) The written request for a hearing
must contain the following:
(i) statement
requesting a hearing;
(ii) name,
address, and identification number of the licensee, registrant, or certified
industrial radiographer against whom the action is being taken.
(B) Failure to submit a written
request for a hearing within 30 days will render the agency action
final.
(j) Assessment of administrative penalties.
(1)
When the agency determines that monetary penalties are appropriate, proposals
for assessment of and hearings on administrative penalties shall be made in
accordance with the Act, §401.384, and applicable sections of the Formal
Hearing Procedures, §§
1.21,
1.23,
1.25, and
1.27 of
this title.
(2) Assessment of
administrative penalties shall be based on the following criteria:
(A) the seriousness of the
violation(s);
(B) previous
compliance history;
(C) the amount
necessary to deter future violations;
(D) efforts to correct the violation;
and
(E) any other mitigating or
enhancing factors.
(3)
Application of administrative penalties. The agency may impose differing levels
of penalties for different severity level violations and different classes of
users as follows.
(A) Administrative
penalties may be imposed for severity level I and II violations. Administrative
penalties may be imposed for severity level III, IV, and V violations when they
are combined with those of higher severity level(s) or for repeated
violations.
(B) The following
Tables IA and IB show the base administrative penalties.
(C)
Adjustments to the percentages of base amounts in Table IB may be made for the
presence or absence of the following factors:
(i) prompt identification and
reporting;
(ii) corrective action
to prevent recurrence;
(iii)
compliance history;
(iv) prior
notice of similar event;
(v)
multiple occurrences; and
(vi)
negligence that resulted in or increased adverse effects.
(D) The penalty for each violation may be in
an amount not to exceed $10,000 a day for a person who violates the Act or a
rule, order, license or registration issued in accordance with the Act. Each
day a violation continues may be considered a separate violation for purposes
of penalty assessment.
(4) The department may conduct settlement
negotiations.
(k) Severity levels of violations for licensees, registrants, certified industrial radiographers, or other persons.
(1)
Violations for licensees, registrants, certified industrial radiographers, or
other persons shall be categorized by one of the following severity levels.
(A) Severity level I are violations that are
most significant and may have a significant negative impact on occupational
and/or public health and safety or on the environment. Severity level I
violations are most significant and may have a significant negative impact by
increasing the risk of unauthorized use of radioactive material that would be
detrimental to public health and safety.
(B) Severity level II are violations that are
very significant and may have a negative impact on occupational and/or public
health and safety or on the environment. Severity level II violations are very
significant and may have a negative impact by increasing the risk of
unauthorized use of radioactive material that would be detrimental to public
health and safety.
(C) Severity
level III are violations that are significant and which, if not corrected,
could threaten occupational and/or public health and safety or the environment.
Severity level III are significant and, if not corrected, could increase the
risk of unauthorized use of radioactive material that would be detrimental to
public health and safety.
(D)
Severity level IV are violations that are of more than minor significance, but
if left uncorrected, could lead to more serious circumstances.
(E) Severity level V are violations that are
of minor safety or environmental significance.
(2) Additional violations for mammography
registrants. Violations for mammography registrants shall be categorized by one
of the following severity levels.
(A)
Severity level I violations indicate a serious noncompliance that may adversely
affect image quality or that may compromise the quality of mammography
services.
(B) Severity level II
violations indicate key quality system requirements are being met, but there is
a failure to meet one or more quality standards that may lead to a compromise
of the quality of mammography services.
(C) Severity level III violations indicate
that the quality system requirements are being met, but minor corrective
actions are required for compliance with the quality standards.
(D) Severity level IV violations indicate
that the quality system requirements and standards are being met, but minor
corrective actions are required for compliance.
(3) Criteria to elevate or reduce severity
levels.
(A) Severity levels may be elevated to
a higher severity level for the following reasons:
(i) more than one violation resulted from the
same underlying cause;
(ii) a
violation contributed to or was the consequence of the underlying cause, such
as a management breakdown or breakdown in the control of licensed or registered
activities;
(iii) a violation
occurred multiple times between inspections;
(iv) a violation was willful or grossly
negligent;
(v) compliance history;
or
(vi) other mitigating
factors.
(B) Severity
levels may be reduced to a lower level for the following reasons:
(i) the licensee/registrant identified and
corrected the violation prior to the agency inspection;
(ii) the licensee/registrant's actions
corrected the violation and prevented recurrence; or
(iii) other mitigating factors.
(4) Examples of
severity levels. Examples of severity levels are available upon request to the
agency.
(l) Impoundment of sources of radiation.
(1) In the event of
an emergency, the agency shall have the authority to impound or order the
impounding of sources of radiation possessed by any person not equipped to
observe or failing to observe the provisions of the Act, or any rules, license
or registration conditions, or orders issued by the agency. The agency shall
submit notice of the action to be published in the Texas
Register no later than 30 days following the end of the month in which
the action was taken.
(2) At the
agency's discretion, the impounded sources of radiation may be disposed of by:
(A) returning the source of radiation to a
properly licensed or registered owner, upon proof of ownership, who did not
cause the emergency;
(B) releasing
the source of radiation as evidence to police or courts;
(C) returning the source of radiation to a
licensee or registrant after the emergency is over and settlement of any
compliance action; or
(D) sale,
destruction or other disposition within the agency's discretion.
(3) If agency action is necessary
to protect the public health and safety, no prior notice need be given the
owner or possessor. If agency action is not necessary to protect the public
health and safety, the agency will give written notice to the owner and/or the
possessor of the impounded source of radiation of the intention to dispose of
the source of radiation. Notice shall be the same as provided in subsection
(i)(8) of this section. The owner or possessor shall have 30 days from the date
of personal service or mailing to request a hearing in accordance with 1 TAC,
Chapter 155, and the Formal Hearing Procedures, §§1.21 of, 1.23,
1.25, and 1.27 of this title, and in accordance with subsection (i)(9) of this
section, concerning the intention of the agency. If no hearing is requested
within that period of time, the agency may take the contemplated action, and
such action is final.
(4) Upon
agency disposition of a source of radiation, the agency may notify the owner
and/or possessor of any expense the agency may have incurred during the
impoundment and/or disposition and request reimbursement. If the amount is not
paid within 60 days from the date of notice, the agency may request the
Attorney General to file suit against the owner/possessor for the amount
requested.
(5) If the agency
determines from the facts available to the agency that an impounded source of
radiation is abandoned, with no reasonable evidence showing its owner or
possessor, the agency may make such disposition of the source of radiation as
it sees fit.
(m) Emergency orders.
(1) When an emergency
exists requiring immediate action to protect the public health or safety or the
environment, the agency may, without notice or hearing, issue an order citing
the existence of such emergency and require that certain actions be taken as it
shall direct to meet the emergency. The agency shall, no later than 30 days
following the end of the month in which the action was taken, submit notice of
the action for publication in the Texas Register. The action
taken will remain in full force and effect unless and until modified by
subsequent action of the agency.
(2) In addition to the requirements of
paragraph (1) of this subsection, the agency shall issue an order directing any
action and corrective measure needed to remedy or neutralize the following
emergency situations:
(A) when the agency
determines that byproduct material as defined in the Act, §401.003(3)(B),
or the operation generating the byproduct material, or that radioactive waste
threatens the public health or safety or the environment; and
(B) if the person managing the byproduct
material, or the operation generating the byproduct material or the radioactive
waste, is unable to correct or neutralize the threat.
(3) An emergency order takes effect
immediately upon service.
(4) Any
person receiving an emergency order shall comply immediately.
(5) The agency shall use any security
provided by a licensee in accordance with the Act to pay toward the costs of
such actions and corrective measures taken. If the cost of actions and
corrective measures require more funds than the security has provided, the
agency shall request the Attorney General to seek reimbursement from the
licensee or person causing the threat.
(A)
The agency may send a copy of its order specified in this subsection to the
Comptroller of Public Accounts together with necessary documents authorizing
the Comptroller of Public Accounts to enforce security supplied by the
licensee, convert the necessary amount of security into cash, and disburse from
this security in the fund the amount necessary to pay costs of the agency
actions and corrective measures. The agency shall direct the comptroller as to
the amounts and recipients of the funds.
(B) The agency may request the Attorney
General to file suit for reimbursement if the agency uses security from the
Radiation and Perpetual Care Account to pay for actions or corrective measures
to remedy spills or contamination by radioactive material resulting from a
violation of the Act or requirements of this chapter, license, or order of the
agency.
(6) The person
receiving the order shall be afforded the opportunity for a hearing on an
emergency order. Notice of the action, along with a complaint, shall be given
to the person by personal service or certified mail, addressed to the last
known address. A hearing shall be held on an emergency order if the person
receiving the order submits a written request to the director within 30 days of
the date of the order.
(A) The hearing shall
be held not less than 10 days nor more than 20 days after receipt of the
written application for hearing.
(B) At the conclusion of the hearing and
after the proposal for decision is made as provided in the Texas Administrative
Procedure Act, Texas Government Code, Chapter 2001, the commissioner shall take
one of the following actions:
(i) determine
that no further action is warranted;
(ii) amend the license or certificate of
registration;
(iii) revoke or
suspend the license, certificate of registration, or industrial radiographer
certification;
(iv) rescind the
emergency order; or
(v) issue such
other order as is appropriate.
(C) The application and hearing shall not
delay compliance with the emergency order.
(n) Miscellaneous provisions.
(1) Computation of time. A time period
established by the requirements of this chapter shall begin on the first day
after the event that invokes the time period. When the last day of the period
falls on a Saturday, Sunday, or state or federal holiday, the period shall end
on the next day that is not a Saturday, Sunday, or state or federal holiday.
The time period shall expire at 5:00 p.m. of the last day of the computed
period.
(2) Interested person.
(A) An interested person may:
(i) make sworn or unsworn
statements;
(ii) attend a hearing
and may present evidence after the presentation of evidence by the parties;
or
(iii) be represented by an
attorney.
(B) An
interested person may not:
(i) cross-examine
the witnesses of the parties;
(ii)
object to evidence presented by the parties; or
(iii) appeal a decision rendered by the
agency.
(C) An
interested person is not responsible for sharing the costs of the transcription
of the hearing, but may purchase a transcript.
(D) The parties may cross-examine witnesses
presented by an interested person.
(E) At the discretion of the ALJ an
interested person may make an unsworn statement. Such statement shall not be
made a part of the record.
(3) Hearing location. Hearings will be held
at the offices of the State Office of Administrative Hearings in Austin unless
the ALJ specifies another location.
(4) Prepared testimony. The following shall
apply to written testimony of a witness:
(A)
the testimony of a witness may be reduced to writing and offered into evidence
as an exhibit, provided:
(i) the witness is
present and has been sworn;
(ii)
the witness identifies and adopts the written testimony as his/her own;
and
(iii) all parties receive a
copy of the testimony at least ten days before its submission at the
hearing.
(B) written
testimony shall be subject to objection and may be stricken by the ALJ. The
witness shall be subject to cross-examination.
(5) Prior testimony. Testimony and evidence
presented in the hearing to determine standing have the same weight at the
hearing on the merits if a tape recording or written transcript of the standing
hearing is available.
(6) Non-party
witness and mileage fees.
(A) A witness or
deponent who is not a party (or an employee, agent, or representative of a
party) and who is subpoenaed or otherwise compelled to attend an agency hearing
or a proceeding to give a deposition, or to produce books, records, papers,
accounts, documents, or other objects necessary and proper for the purposes of
the hearing or proceeding may receive reimbursement for transportation and
other costs at rates established by the current Appropriations Act for state
employees.
(B) The person
requesting the attendance of the witness or deponent must deposit with the
agency the funds estimated to accrue in accordance with subparagraph (A) of
this paragraph when filing a motion for the issuance of a subpoena or a
commission to take a deposition.
(7) Service. A return of service by the
person who performed personal service, postal return receipt, or proof of
mailing to the last known address shall be conclusive evidence of
service.
Disclaimer: These regulations may not be the most recent version. Texas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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