Current through Register 1531, September 27, 2024
(1)
Criteria for Determining Whether Prior Issuance of a Notice of
Noncompliance Is Required for Assessment of a Civil Administrative
Penalty. A penalty may be assessed only if either:
(a) a Notice of Noncompliance has been given
to that person as set forth in 309 CMR 8.03; or
(b) a Notice of Noncompliance has not been
given to that person but the failure to comply was as set forth in
309
CMR 8.01(2)(b), (c) or
(d).
(2)
Content of a Notice of
Noncompliance. A Notice of Noncompliance shall:
(a) describe one or more requirement(s) in
effect when the Notice of Noncompliance was given, and for each such
Requirement, the occasion(s) that the Board asserts said person was not in
compliance therewith; and
(b)
specify a reasonable deadline or deadlines by which the person shall come into
compliance with the requirement(s) described in the Notice of
Noncompliance.
(3)
Criteria to be Considered in Determining Whether a Civil
Administrative Penalty May Be Assessed After a Notice of Noncompliance Has Been
Given. The Board may assess a penalty on any person when the
criteria set forth in
309 CMR
8.02 and the following criteria are met:
(a) the Board has previously given that
person a Notice of Noncompliance;
(b) that person did not:
1. come into compliance, within the deadline
specified in the Notice of Noncompliance, with the requirement(s) described in
the Notice of Noncompliance, or
2.
submit, within the deadline specified in the Notice of Noncompliance, a written
proposal setting forth how and when that person proposes to come into
compliance with the requirement(s) described in the Notice of Noncompliance;
and
(c) noncompliance
with the requirement(s) described in the Notice of Noncompliance continued or
was repeated on or after the deadline(s) specified in the Notice of
Noncompliance.
(4)
Additional Criteria to be Considered in Determining Whether a Civil
Administrative Penalty May Be Assessed After a Notice of Noncompliance Has Been
Given. In determining whether to assess a penalty after a Notice
of Noncompliance has been given, the Board may consider, but shall not be
limited to considering, the following criteria:
(a) whether or not other notices of non
compliance have been issued to the same person within the preceding five
years;
(b) what the person did to
prevent the violation for which the person would be assessed the penalty and
the other violation(s) described in the prior Notice of
Noncompliance(s);
(c) what the
person did, and how quickly the person acted, to come into compliance after the
occurrence of the violation for which the person would be assessed the penalty
and the other violation(s) described in the prior Notice(s) of
Noncompliance;
(d) what the person
did, and how quickly the person acted, to remedy and mitigate whatever harm
might have been done as a result of the occurrence of the violation for which
the person would be assessed the penalty and the other violation(s) described
in the prior Notice(s) of Noncompliance; and
(e) the actual and potential damages
suffered, and actual or potential costs incurred, by the Commonwealth, or by
any other person, as a result of the occurrence of the violation for which the
person would be assessed the penalty and the other violation(s) described in
the prior Notice(s) of Noncompliance.
