Code of Massachusetts Regulations
360 CMR - MASSACHUSETTS WATER RESOURCE AUTHORITY
Title 360 CMR 2.00 - Enforcement And Administrative Penalties
APPEALS AND AFFIRMATIVE DEFENSES
Section 2.21 - Appeals of Notices of Noncompliance, Orders, Permits and Permit Actions

Universal Citation: 360 CMR 2.00 MA Code of Regs 2.21

Current through Register 1531, September 27, 2024

(1) Except as provided in 360 CMR 2.21(7), whenever the Authority issues, denies, revokes, suspends, modifies, or refuses to renew a permit, or issues an Order or Notice of Noncompliance, the Person subject to such Authority action shall have ten working days from the date of such action or notice to submit a written request for reconsideration and/or a stay of that action. The request shall set forth in detail the facts supporting it.

(2) The Authority may schedule and hold an informal conference with the Person submitting a request for reconsideration and/or a stay.

(3) The Authority shall issue a ruling on a request for reconsideration and/or a stay within 15 working days after completing its consideration of the request. The ruling may affirm, modify, or withdraw the Authority action that is the subject of the request, and shall inform the Person of its right to appeal the ruling by commencing, within 30 calendar days of the date of the ruling, an adjudicatory proceeding.

(4) Within 30 calendar days of the Authority's issuance of a ruling on a request for reconsideration and/or a stay, the Person who requested reconsideration may appeal the ruling by filing a written Claim for An Adjudicatory Proceeding with the Authority. The Claim shall comply with 360 CMR 1.00. The Proceeding shall be governed by 360 CMR 1.00: Adjudicatory Proceedings. The adjudicatory proceeding shall provide each party with the opportunity for a full and fair hearing and the opportunity to call and examine witnesses, to introduce evidence, to cross-examine witnesses who testify, and to submit rebuttal evidence, as provided by 360 CMR 1.00. This shall not be construed to limit or prevent prefiled direct testimony as provided in 360 CMR 1.00.

(5) The Authority shall not be required to prove the occurrence of an act or omission alleged by the Authority in a Notice, Order, Permit or Permit Action not disputed in the request for reconsideration and the claim for adjudicatory proceeding. Failure to contest an allegation contained in the Notice, Order, Permit or Permit Action shall constitute an admission of that allegation. The Authority shall have the burden to establish each challenged fact by a preponderance of the evidence, except the Person contesting the Notice, Order, Permit or Permit Action shall have the burden of establishing an affirmative defense available pursuant to 360 CMR 2.23. The results of sampling and analysis of wastewater conducted according to appropriate sampling, custody, and analysis procedures and contained in the official records of the Authority shall be admissible and such results shall be afforded a rebuttable presumption of validity.

(6) The timely submittal of a request for reconsideration and/or stay of a Permit Action shall not postpone the effective date of the Permit Action. Upon written request by the person subject to the Permit Action, the Authority may consider a temporary stay of action.

(7) The commencement of an adjudicatory proceeding shall not operate as a stay of any existing or further enforcement action by the Authority, unless the person requesting an adjudicatory proceeding also requests a stay by motion, in which case the Presiding Officer may, in his or her discretion, order a stay upon such terms as he or she considers proper.

(8) An adjudicatory proceeding shall be ended by:

(a) A voluntary dismissal, pursuant to 360 CMR 1.27(2);

(b) A written Settlement by Agreement of the Parties pursuant to 360 CMR 1.27(3), which shall take effect only upon written approval by the Executive Director; or

(c) A final decision, pursuant to 360 CMR 1.26 which shall take effect only upon written approval by the Executive Director.

(9) When the Authority modifies a permit, only the terms being modified are subject to appeal. In addition, there shall be no appeal from the Authority's action issuing, denying, revoking, suspending, modifying, or refusing to renew a permit when the Authority took the action to implement the terms of a settlement agreement between the Authority and the permittee, or to implement a ruling on reconsideration, final decision in an adjudicatory proceeding, or court action.

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