| (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, 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 Cont'd... |
