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TITLE 25HEALTH SERVICES
PART 1DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 295OCCUPATIONAL HEALTH
SUBCHAPTER CTEXAS ASBESTOS HEALTH PROTECTION
RULE §295.70Compliance: Administrative Penalty

(a) If a person violates the Texas Asbestos Health Protection Act (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 $10,000 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 any others that justice may require.

(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.

(f) Violations shall be placed in one of the following severity levels.

  (1) Critical violation. Severity Level I covers violations that are most significant and have a direct negative impact on public health and safety. This category shall include fraud and misrepresentation. The base penalty for a Level I violation, first occurrence will not exceed $10,000 per day, per violation. Examples of Level I violations include, but are not limited to:

    (A) failure to establish effective containment during abatement of friable material;

    (B) permitting disposal of friable asbestos-containing building material (ACBM) at uncontrolled sites;

    (C) working without a license or with improper (forged, altered, etc.) license;

    (D) failure to adequately prevent public entry to potentially contaminated areas;

    (E) failure to maintain material in an adequately wet condition;

    (F) submitting a forged or altered training certificate in order to obtain a training provider or other license;

    (G) training providers training without a license or with an improper license;

    (H) training providers providing training certificates to persons who have not attended the required training course as specified by the department and/or the Model Accreditation Plan; and

    (I) failure to submit a notification.

  (2) Serious violation. Severity Level II covers violations that are significant and which, if not corrected, could threaten public health and safety. The base penalty for Level II violations on a first occurrence will not exceed $1,000 per day, per violation. Examples of Level II violations include, but are not limited to:

    (A) working with a lapsed or suspended license;

    (B) submitting an improper notification;

    (C) a training provider failing to conduct a training course for the specified time period as specified in §295.64 of this title (relating to Training: Required Asbestos Training Courses);

    (D) training with a lapsed training provider license. If this results in a suspension, the organization and its principals will not be allowed to be licensed for a period of one year;

    (E) failure of a licensed person to maintain current training or physical; and

    (F) failure to pay the required notification fee.

  (3) Significant violation. Severity Level III covers violations that are of more than minor significance and, if left uncorrected, could lead to more serious circumstances. The base penalty for Level III violations on first occurrence will not exceed $100 per day, per violation. Examples of Level III violations include, but are not limited to:

    (A) failure to properly complete the notification form;

    (B) failure to post required documents listed in §295.58(j) of this title (relating to Operations: General Requirements for Public Buildings);

    (C) failure to have worker certificate on a job site;

    (D) failure of a training provider to submit information to the department regarding training course schedules or to notify the department of cancellations within the specified time periods;

    (E) failure of a training provider to submit course completion information within the specified time period as described in §295.65(f)(3) of this title (relating to Training: Approval of Training Courses);

    (F) a training provider exceeding the maximum trainee-instructor ratio; and

    (G) failure to pay the required notification fee within 60 days from the date of the invoice.

(g) The person charged with the violation will be given the opportunity for a hearing conducted in accordance with the applicable provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal 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, the commissioner of health or his/her designee may issue a default order assessing the administrative penalty.


Source Note: The provisions of this §295.70 adopted to be effective October 20, 1992, 17 TexReg 6901; amended to be effective September 22, 1994, 19 TexReg 7098; amended to be effective December 13, 1998, 23 TexReg 12353; amended to be effective March 27, 2003, 28 TexReg 2549

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