Current through Reg. 49, No. 38; September 20, 2024
(a)
If a person violates the Act, or a rule adopted or order issued under the Act,
the Texas Department of Health (department) may assess an administrative
penalty.
(b) The penalty shall not
exceed $5,000 a day per violation. Each day a violation continues will be
considered a separate violation. The total penalty will be the sum of all
individual violation penalties.
(c)
In assessing administrative penalties, the department shall consider the:
(1) history of previous
violation(s);
(2) seriousness of
the violation(s);
(3) hazard to the
health and safety of the public; and
(4) demonstrated good faith, and any other
matter which justice may require.
(d) Individual violations may be reduced or
enhanced based on the considerations listed in subsection (c) of this section,
or other matters that justice may require. A reduction or enhancement may be
considered, based on the facts presented to the department.
(e) A person is subject to double the initial
penalty on second finding of violation of any provision of the Act or rules.
Third and subsequent violations of a provision are subject to five times the
initial penalty. In any case, the penalty shall not exceed $5,000 a day per
violation.
(f) Violations shall be
placed in one of the following severity levels.
(1) Severity Level I. The base penalty for a
Level I violation, first occurrence will not exceed $5,000 per day, per
violation. Examples of Level I violations include, but are not limited to:
(A) working without certification from the
department or working with improper (forged, altered, etc,)
certification;
(B) working with a
suspended or decertified certification;
(C) failing to develop and implement a
written occupant protection plan;
(D) providing training certificates to
persons who have not attended the required training course as specified by the
department;
(E) using prohibited
lead abatement methods such as open-flame burning or torching, machine sanding
or grinding without a high-efficiency particulate air (HEPA) vacuum tool,
uncontained hydroblasting or high pressure washing, abrasive blasting or sand
blasting without HEPA vacuum exhaust tools, or heat guns that operate at 1100
degrees Fahrenheit or above; or
(F)
training for certification purposes without obtaining accreditation from the
department.
(2) Severity
Level II. The base penalty for Level II violations on a first occurrence will
not exceed $2,000 per day, per violation. Examples of Level II violations
include, but are not limited to:
(A) failing
to submit a notification to the department;
(B) failing to conduct a training course for
the specified time period;
(C)
certified supervisor not onsite or available directly through a pager or
answering service;
(D) refusing or
impeding entry to department representatives in order to conduct compliance
inspections;
(E) working with an
expired certification;
(F) training
with an expired training provider accreditation; or
(G) working with a fee-exempt certification,
issued to a department employee, on non-department related lead-based paint
activities.
(3) Severity
Level III. The base penalty for Level III violations on first occurrence will
not exceed $1,000 per day, per violation. Examples of Level III violations
include, but are not limited to:
(A) failing
to pay the required notification fee to the department;
(B) submitting an improper notification to
the department;
(C) failing to have
the department-issued certification ID card and one form of photo
identification present at the worksite;
(D) training provider fails to submit
information to the department regarding training course schedules, or to notify
the department of cancellations within the specified time periods;
(E) inspection/risk assessment report not
prepared; or
(F) failure to have a
written occupant protection plan at the worksite.
(g) The person charged with the
violation will be given the opportunity for a hearing conducted in accordance
with the department's fair hearing procedures in Chapter 1 of this title
(relating to the Board of Health).
(h) The hearing regarding a proposed
administrative penalty may be consolidated with another hearing on an
administrative penalty.
(i) If the
person charged with the violation fails to request a hearing within 30 days
following receipt of a notice of violation, an administrative penalty may be
assessed after the Commissioner of Health has determined that a violation did
occur and the amount of the penalty is warranted.
