SECTION 295.220. Compliance: Administrative Penalty

(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.

Source Note: The provisions of this §295.220 adopted to be effective February 19, 1996, 21 TexReg 968; amended to be effective May 10, 1998, 23 TexReg 4280; amended to be effective March 23, 2003, 28 TexReg 2347; amended to be effective January 1, 2005, 29 TexReg 11987