Code of Massachusetts Regulations
360 CMR - MASSACHUSETTS WATER RESOURCE AUTHORITY
Title 360 CMR 2.00 - Enforcement And Administrative Penalties
APPEALS AND AFFIRMATIVE DEFENSES
Section 2.22 - Appeals of Penalty Assessment Notices

Universal Citation: 360 CMR 2.00 MA Code of Regs 2.22

Current through Register 1531, September 27, 2024

(1) Within 30 days of the issuance of a Penalty Assessment Notice, the Person to whom the notice is issued may request a hearing by filing a Claim for Adjudicatory Proceeding pursuant to 360 CMR 1.00. In addition to the complying with the requirements of 360 CMR 1.00, the Claim shall:

(a) Contain a concise statement of the grounds for the Claim;

(b) Identify each contested act or omission alleged in the Penalty Assessment Notice and state the grounds for contesting the act or omission;

(c) Identify each Requirement alleged to have been violated that the Person intends to contest and state the grounds for contesting the Requirement;

(d) Contain a concise statement of the grounds upon which the Person intends to contest the penalty assessed for each act or omission alleged to constitute a Violation; and

(e) State the relief sought.

(2) 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: Adjudicatory Proceedings. This shall not be construed to limit or prevent prefiled direct testimony as provided in 360 CMR 1.00.

(3) The Authority shall not be required to prove the occurrence of an act or omission alleged by the Authority in a Penalty Assessment Notice and not disputed in the Claim for Adjudicatory Proceeding. Failure to contest an allegation contained in the Penalty Assessment Notice 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 penalty shall have the burden of establishing an affirmative defense available pursuant to 360 CMR 2.23 and the burden of establishing that it is entitled to a reduction in a penalty amount pursuant to 360 CMR 2.33(6). The results of sampling and analysis of wastewater contained in the official records of the Authority shall be admissible and such results shall be afforded a rebuttable presumption of validity. The presumption shall be overcome by evidence showing sampling, custody, or analytical errors.

(4) The hearing and any post-hearing proceedings shall be conducted according to the provisions of 360 CMR 1.24: Hearings and Conferences, including the provisions for preparing a transcript and settling the record.

(5) An adjudicatory proceeding on a Penalty Assessment Notice shall be ended by either:

(a) A written agreement, which shall take effect only upon written approval by the Executive Director; or

(b) A Final Decision, which shall take effect only upon written approval by the Executive Director.

(6) After the issuance of a Final Decision approved by the Executive Director, any party who has the right to seek judicial review of the Decision may commence an appeal pursuant to M.G.L. c. 30A.

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