<<Prev Rule

Texas Administrative Code

Next Rule>>
RULE §289.205Hearing and Enforcement Procedures

(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


Next Page

Link to Texas Secretary of State Home Page | link to Texas Register home page | link to Texas Administrative Code home page | link to Open Meetings home page