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 Noncompliance Notice has been given to
that person as set forth in 310 CMR 5.12, or
(b) a Noncompliance Notice has not been given
to that person but the failure to comply was as set forth in
310
CMR 5.10(2)(b), (c), (d), (e), (f), (g), or
(h).
(2)
Content of a Notice of
Noncompliance. A Noncompliance Notice shall:
(a) describe one or more Requirement(s) in
effect when the Noncompliance Notice was given, and for each such Requirement,
the occasion(s) that the Department asserts said person was not in compliance
therewith; and
(b) specify a
reasonable deadline or deadlines by which the person shall either
1. come into compliance with the
Requirement(s) described in the Noncompliance Notice, or
2. submit to the Department a written
proposal setting forth how and when that person proposes to come into
compliance with the Requirement(s) described in the Noncompliance
Notice.
(3)
Criteria to be Considered in Determining Whether a Civil
Administrative Penalty May Be Assessed After a Notice of Noncompliance Has Been
Given. The Department may assess a Penalty on any person when the
criteria set forth in
310
CMR 5.11 are met, and the following criteria
are met:
(a) The Department has previously
given that person a Noncompliance Notice. Solely for purposes of implementing
310 CMR 5.12(3), the violation(s) described in the Noncompliance Notice must
have occurred on or after September 18, 1985.
(b) That person did not:
1. come into compliance, within the deadline
specified in the Noncompliance Notice, with the Requirement(s) described in the
Noncompliance Notice, or
2. submit,
within the deadline specified in the Noncompliance Notice, a written proposal
setting forth how and when that person proposed to come into compliance with
the Requirement(s) described in the Noncompliance Notice.
(c) Noncompliance with the Requirement(s)
described in the Noncompliance Notice continued or was repeated on or after the
deadline(s) specified in the Noncompliance Notice.
(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 Department may consider, but shall not be limited to
considering, the following criteria:
(a)
Whether or not five years or less have elapsed between the date of the most
recent notice of noncompliance with the Requirement(s) for which a Penalty
would be assessed and the date of the Penalty Assessment Notice.
(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 Noncompliance Notice(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 Noncompliance Notice(s).
(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
Noncompliance Notice(s).
(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 Noncompliance Notice(s).
