Texas high court weighs whether DSHS rule can be challenged by landowners with abandoned radioactive material

At oral argument before the Supreme Court of Texas, counsel for petitioner Kensington Title Nevada LLC urged justices to allow a pre-enforcement declaratory challenge under Texas Government Code §2001.038 to a Department of State Health Services rule governing radioactive material.

Kensington’s counsel argued the rule could force landowners to become “accidental licensees” when licensed users abandon radioactive material (RAM) on private property, leaving owners exposed to regulatory liability and enforcement. "If the court sides with DSHS in this case, then licensed users of radioactive material will be permitted to abandon RAM, leaving innocent landowners to clean up the mess," counsel said.

The dispute centers on whether Kensington — which foreclosed on the real property in 2018 but says it never held or sought a license to possess the radioactive material — may seek a court declaration that the agency rule does not apply to landowners in its situation without first exhausting administrative proceedings. Kensington told the court it attempted to have DSHS take possession, began limited decommissioning under a DSHS‑approved plan, and then stopped after Denton County taxing entities added Kensington to…