(1)
Criteria to be Considered in Determining Whether Instances of
Noncompliance Constitute a Pattern of Noncompliance for which a Civil
Administrative Penalty May Be Assessed. A penalty may be assessed
without the prior issuance of a Notice of Noncompliance if the criteria set
forth in
309 CMR
8.02 are met and the violation thus being
penalized is not an isolated instance but part of a pattern of noncompliance.
In determining whether the violation to be thus penalized is not an isolated
instance but part of a pattern of noncompliance, the Board shall consider, but
shall not be limited to considering, the following criteria:
(a) whether the person who would be assessed
the penalty was given by the Board, on at least one previous occasion during
the five-year period prior to the date of the Penalty Assessment Notice, a
Notice of Noncompliance asserting violation(s) of the same requirement(s) as
the requirement(s) for violation of which the person would be assessed the
penalty;
(b) whether the person who
would be assessed the penalty was given by the Board, on at least two previous
occasions during the four-year period prior to the date of the Penalty
Assessment Notice, a Notice of Noncompliance asserting violation(s) of
requirement(s) different from the requirement(s) for violation of which the
person would be assessed the penalty;
(c) whether the violation for which the
person would be assessed the penalty and the other violation(s) described in
the prior Notice(s) of Noncompliance, considered together, indicate:
1. a potential threat to public health,
safety, or welfare, or the environment;
2. an interference with the Board's ability
to efficiently and effectively administer its programs; or
3. an interference with the Board's ability
to efficiently and effectively enforce any requirement to which 309 CMR
applies.
(2)
Additional Criteria to be Considered in Determining Whether
Instances of Noncompliance Constitute a Pattern of Noncompliance for which a
Civil Administrative Penalty May Be Assessed. In determining
whether the violation to be penalized is not an isolated instance but part of a
pattern of noncompliance, the Board may consider, but shall not be limited to
considering, the following criteria:
(a) 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(s) of
Noncompliance;
(b) 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;
(c) 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
(d) 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.
