| (III) Adjustments to the percentages of base amounts
in Table B may be made for the presence or absence of the following
factors:
(-a-) prompt identification and reporting;
(-b-) corrective action to prevent recurrence;
(-c-) compliance history;
(-d-) prior notice of similar event;
(-e-) multiple occurrences; and
(-f-) negligence that resulted in or increased adverse
effects.
(IV) 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 requirements
of this section, order, or certificate of registration issued in accordance
with the Act. Each day a violation continues may be considered a separate
violation for purposes of penalty assessment.
(iv) The agency may conduct settlement negotiations.
(E) Severity levels of violations for registrants or
other persons.
(i) Violations for registrants or other persons shall
be categorized by one of the following severity levels.
(I) Severity level I are violations that are most significant
and may have a significant negative impact on occupational or public
health and safety or on the environment.
(II) Severity level II are violations that are very
significant and may have a negative impact on occupational or public
health and safety or on the environment.
(III) Severity level III are violations that are significant
and which, if not corrected, could threaten occupational or public
health and safety or the environment.
(IV) Severity level IV are violations that are of more
than minor significance, but if left uncorrected, could lead to more
serious circumstances.
(V) Severity level V are violations that are of minor
safety or environmental significance.
(ii) Criteria to elevate or reduce severity levels.
(I) Severity levels may be elevated to a higher severity
level for the following reasons:
(-a-) more than one violation resulted from the same
underlying cause;
(-b-) a violation contributed to or was the consequence
of the underlying cause, such as a management breakdown or breakdown
in the control of registered activities;
(-c-) a violation occurred multiple times between inspections;
(-d-) a violation was willful or grossly negligent;
(-e-) compliance history; or
(-f-) other mitigating factors.
(II) Severity levels may be reduced to a lower level
for the following reasons:
(-a-) the registrant identified and corrected the violation
before the agency inspection;
(-b-) the registrant's actions corrected the violation
and prevented recurrence; or
(-c-) other mitigating factors.
(iii) Examples of severity levels. Examples of severity
levels are available upon request to the agency.
(F) Impoundment of radiation machines. Radiation machines
shall be subject to impounding in accordance with Health and Safety
Code, §401.068 and this paragraph.
(i) In the event of an emergency, the agency shall
have the authority to impound or order the impounding of radiation
machines possessed by any person not equipped to observe or failing
to observe the provisions of the Act, or any requirements of this
section, certificate of 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.
(ii) At the agency's discretion, the impounded radiation
machines may be disposed of by:
(I) returning the radiation machine to a properly registered
owner, upon proof of ownership, who did not cause the emergency;
(II) releasing the radiation machine as evidence to
police or courts;
(III) returning the radiation machine to a registrant
after the emergency is over and settlement of any compliance action;
or
(IV) selling, destroying or other disposition within
the agency's discretion.
(iii) 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
or the possessor of the impounded radiation machine of the intention
to dispose of the radiation machine. Notice shall be the same as provided
in subparagraph (C)(viii) of this paragraph. The owner or possessor
shall have 30 days from the date of personal service or mailing to
request a hearing under Title 1, Texas Administrative Code, Chapter
155, and the Formal Hearing Procedures, §§1.21, 1.23, 1.25,
and 1.27 of this title, and in accordance with subparagraph (C)(ix)
of this paragraph, concerning the intention of the agency. If no hearing
is requested within that period, the agency may take the contemplated
action, and such action is final.
(iv) Upon agency disposition of a radiation machine,
the agency may notify the owner or possessor of any expense the agency
may have incurred during the impoundment 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 or possessor for the amount requested.
(v) If the agency determines from the facts available
that an impounded radiation machine is abandoned, with no reasonable
evidence showing its owner or possessor, the agency may make such
disposition of the radiation machine as it sees fit.
(G) Emergency orders.
(i) 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 the
agency directs to meet the emergency. No later than 30 days following
the end of the month in which the action was taken, the agency shall
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.
(ii) An emergency order takes effect immediately upon
service.
(iii) Any person receiving an emergency order shall
comply immediately.
(iv) 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
after the date of the order.
(I) The hearing shall be held not less than 10 days
nor more than 20 days after receipt of the written application for
hearing.
(II) 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:
(-a-) determine that no further action is warranted;
(-b-) amend the certificate of registration;
(-c-) revoke or suspend the certificate of registration;
(-d-) rescind the emergency order; or
(-e-) issue such other order as is appropriate.
(III) The application and hearing shall not delay compliance
with the emergency order.
(H) Miscellaneous provisions.
(i) Computation of time. A time established by the
requirements of this section shall begin on the first day after the
event that invokes the time. When the last day of the period falls
on a Saturday, Sunday, or state or federal holiday, the time shall
end on the next day that is not a Saturday, Sunday, or state or federal
holiday. The time shall expire at 5:00 p.m. of the last day of the
computed time.
(ii) Hearing location. Hearings will be held at the
offices of the State Office of Administrative Hearings in Austin unless
the administrative law judge specifies another location.
(iii) Non-party witness and mileage fees.
(I) 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.
(II) The person requesting the attendance of the witness
or deponent shall deposit with the agency the funds estimated to accrue
in accordance with subclause (I) of this clause when filing a motion
for the issuance of a subpoena or a commission to take a deposition.
(iv) 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.
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