Current through Register 1531, September 27, 2024
(1) Wherever 310
CMR 19.000, or any approvals or orders issued pursuant thereto, requires that
the owner and/or operator shall take action or refrain from taking action, the
owner and operator shall be jointly and severally liable such that the
Department may take action for any violations of 310 CMR 19.000 against the
owner, the operator or both.
(2)
General. No standard, requirement or condition
established in 310 CMR 19.000 or provision of any permit, authorization,
modification, determination, or other approval or order or other enforcement
document issued pursuant to 310 CMR 19.000, shall be construed to limit any
right of the Department to take enforcement action pursuant to any other
authority. Any failure by any person whose activities are governed by M.G.L. c.
111, § 150A and 310 CMR 19.000, to comply fully with the provisions
thereunder or the terms and conditions of any order, permit, authorization,
modification, determination, or other approval or order or other enforcement
document issued pursuant to 310 CMR 19.000, or with the terms of a site
assignment, shall constitute a violation of M.G.L. c. 111, § 150A and 310
CMR 19.000. It shall also be a violation of 310 CMR 19.000 for any person to:
(a) Fail to submit a certification, log,
application for a permit or permit modification, plan, report, third-party
inspection report, or any other document within the time period specified in
310 CMR 19.000 or in any approval, order, or permit issued by the
Department;
(b) Provide or cause to
be provided any false, inaccurate, incomplete or misleading information, in any
certification, log, application for a permit or permit modification, plan,
report, third-party inspection report, third-party inspector qualifications
statement, or any other document which that person is required to submit to the
Department pursuant to 310 CMR 19.000;
(c) Provide any false, inaccurate, incomplete
or misleading information to a third-party inspector or influence a third-party
inspector to provide any false, inaccurate, incomplete or misleading
information in any certification, third-party inspection report or other
submittal to the Department pursuant to 310 CMR 19.000;
(d) Alter or misrepresent the findings or
recommendations made by a third-party inspector in a third-party inspection
report submitted to the Department pursuant to
310 CMR
19.018;
(e) Hold himself or herself out as a
responsible official when he or she is not fully authorized to bind the entity
he or she claims to bind;
(f) Fail
to comply fully with the applicable standards, requirements or conditions
established in 310 CMR 19.000 or with the provisions of any permit,
authorization, modification, determination, or other approval or order issued,
or with the terms and conditions of any certification submitted, pursuant to
310 CMR 19.000;
(g) Act without
submitting a certification in accordance with 310 CMR 19.000 or without a
permit or other approval issued pursuant to 310 CMR 19.000 or site assignment
where one is required; or
(h)
Violate any other provision of 310 CMR 19.000.
(3)
Action by the
Department. Whenever the Department has cause to believe that a
violation has occurred, it may without limitation:
(a) order the owner or operator of the site
or facility, or any other person responsible for the violation, to cease
operations until the violation is corrected to the satisfaction of the
Department, or until such person obtains a site assignment, solid waste
facility permit, and any other applicable approval pursuant to 310 CMR 19.000,
or other applicable permit pursuant to
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities;
(b) order the owner or operator of the site
or facility, or any other person responsible for the violation, to cease
immediately or at a specified date all illegal activity, and to comply fully
with M.G.L. c. 21A, §§ 2 and 8, St. 1987, c. 584, M.G.L. c. 21H,
M.G.L. c. 111, §§ 150A and 150A1/2, 310 CMR 19.000, or any
permit, authorization, certification, determination, or approval submitted or
issued pursuant to
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities or 310 CMR
19.000;
(c) order the owner or
operator of the site or facility, or other person responsible for the
violation, to take appropriate remedial measures, immediately or by a specified
date , to bring the site or facility into compliance to the satisfaction of the
Department or to protect public health or safety or the environmental resources
of the Commonwealth, including without limitation, closure of the site or
facility;
(d) commence proceedings
pursuant to
310
CMR 19.040 to rescind, suspend, revoke, or
modify a permit;
(e) commence
proceedings pursuant to M.G.L. c. 111, § 150A to rescind, suspend, or
modify a site assignment;
(f) issue
a notice of non-compliance or assess a civil administrative penalty pursuant to
M.G.L. c. 21A, § 16 and
310 CMR
5.00: Administrative Penalty or
initiate an enforcement action in accordance with applicable statutes and
regulations;
(g) refer the matter
to the Attorney General for civil or criminal action pursuant to any applicable
statute; or
(h) take such other
action as provided by 310 CMR 19.000 or other applicable statutory or
regulatory authority as the Commissioner deems appropriate.
(4)
Service of Notices
and Orders. Service in all civil administrative penalty actions is
governed by
310 CMR
5.00: Administrative Penalty. The
Department serves an order according to the following procedure except for
processes, notices, and orders issued in the course of an adjudicatory hearing,
which are governed by the provisions of
310 CMR
1.00: Adjudicatory Proceedings:
(a) Service of an order may be made via hand
delivery or mail. Service of an order when made by any form of mail requiring
the return of a receipt signed by the person to be served is complete upon
receipt by the person or by any officer, employee, or agent of the person
authorized by appointment of the person or by law to accept service. The fact
and date of service is established by the returned receipt or by affidavit of
the person who hand delivery the order.
(b) The Department may make service of an
order in any other manner, including any form of telecommunications or
publication, that is reasonably calculated to give actual notice of the order
to the person to be served. The Department may uses such alternative or
substitute methods of service when the recipient refuses to accept service by
the means set forth in 310 CMR 19.081(4)(a) or when exigent circumstances
require its doing so. The fact and date of service in such cases is established
by such records as may be available.
(5)
Right to Adjudicatory
Hearing. Subject to the provisions of 310 CMR 19.081(6), a person
who is the subject of an order issued pursuant to 310 CMR 19.081(3) shall have
the right to an adjudicatory hearing on such order pursuant to
310
CMR 1.01: Adjudicatory Proceeding
Rules for the Department of Environmental Protection. Any right to an
adjudicatory hearing concerning assessment of a civil administrative penalty
shall be determined in accordance with the provisions of
310 CMR
5.00: Administrative
Penalty.
(6)
Waiver of Right to Adjudicatory Hearing. Any person
who is the subject of an order issued pursuant to 310 CMR 19.081(3) shall be
deemed to have waived the right to an adjudicatory hearing, unless, within 21
days of the date of service of the order, the Department receives a written
statement setting forth the basis for the request, subject to and in compliance
with the applicable provisions of
310
CMR 1.01: Adjudicatory Proceeding
Rules for the Department of Environmental Protection.
(7)
Burden of
Persuasion. In an adjudicatory hearing under 310 CMR 19.081(5),
the burden shall be on the person conducting the solid waste activities
regulated pursuant to 310 CMR 19.000 to persuade the Department that:
(a) the solid waste activity does not create
public nuisance conditions and does not pose a threat to public health, safety
or the environment; and
(b) the
person conducting the solid waste activities is and will continue to be in
compliance with M.G.L. c. 111, § 150A and 310 CMR 19.000.
