Current through Register 1518, March 29, 2024
(1)
General. In addition to the penalties permitted by
M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; and
M.G.L. c. 149, §§ 6, 6½ and 6A through 6F½, the
Director or his or her representative may issue a Civil Citation for each
Violation. Said Civil Citation may include an Order to correct the deficiency
or infraction that resulted in the issuance of the Civil Citation, a Civil
Penalty, or both. Said Civil Citation shall include:
(a) A statement of the alleged act or
omission for which the Civil Citation is issued;
(b) Identification of the law, regulation or
order that has not been complied with as a result of such alleged act or
omission;
(c) If a Civil Penalty is
issued, the amount of the Civil Penalty for each alleged act or omission for
which the Civil Penalty is assessed;
(d) A statement that the person to whom the
Civil Citation is issued has a right to appeal the Civil Citation through an
adjudicatory hearing;
(e) A
statement that sets forth the actions that must be taken by the person to whom
the Civil Citation is issued in order for said person to avoid being deemed to
have waived his or her right to an adjudicatory hearing; and
(f) If a Civil Penalty is assessed, a
statement of how and when the Civil Penalty must be paid.
(2)
Maximum Amounts of Civil
Penalties. The maximum amounts of Civil Penalties that may be
assessed under
454 CMR
29.00 are:
(a) A
monetary penalty of not more than $1,000 may be issued for each Violation if:
1. the person, firm, corporation or other
entity has not previously been criminally convicted of a Violation of M.G.L. c.
111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c.
149, §§ 6A through 6F½; or has not previously been issued a
Civil Citation pursuant to
454 CMR
29.00; and
2. the Director has determined that the
person, firm, corporation or other entity lacked Specific Intent to violate
M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or
M.G.L. c. 149, §§ 6A through 6F½; or
454 CMR
29.00.
(b) A monetary penalty of not more than
$2,500 may be issued for each Violation if:
1.
the person, firm, corporation or other entity has not previously been
criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c.
140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through
6F½; or been issued a Civil Citation pursuant to
454 CMR
29.00; and
2. the Director has determined that the
person, firm, corporation, or other entity possessed a Specific
Intent.
(c) A monetary
penalty of not more than $5,000 may be issued for each Violation if the person,
firm, corporation or other entity has previously been criminally convicted of a
Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A
through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been
issued a Civil Citation pursuant to
454 CMR
29.00.
(d)
A monetary penalty may be issued pursuant to M.G.L. c. 149 § 6 for
violations of M.G.L. c. 149, § 6½, and
454 CMR
25.00.
(3)
Determination of the Amount
of a Civil Penalty. In determining the amount of each Civil
Penalty, the Department shall consider various factors including, but not
limited to, the following:
(a) The actual and
potential impact on public health, safety and welfare, and the environment of
the failure to comply;
(b) Whether
the person, firm, corporation, or other entity being assessed the Civil Penalty
took steps to prevent noncompliance, to promptly come into compliance and to
remedy and mitigate whatever harm might have been done as a result of such
noncompliance;
(c) Whether the
person, firm, corporation, or other entity being assessed the Civil Penalty has
previously failed to comply with any regulation, order, license, or approval
issued or adopted by the Department, or any law which the Department has
authority or responsibility to enforce;
(d) The deterrence of future noncompliance by
the person, firm, corporation, or other entity, or by other such persons,
firms, corporations or entities;
(e) The financial condition of the person,
firm, corporation, or other entity being assessed the civil penalty;
and
(f) The public
interest.
(4)
Payment of a Civil Penalty. Payment of a Civil Penalty
shall be made by certified check, cashier's check, money order, or credit card
payable to the Commonwealth of Massachusetts. No other form of payment shall be
accepted. Payment of Civil Penalties shall be made within 21 calendar days of
the issuance of a Civil Citation, or if the Civil Citation is appealed, within
21 calendar days of settlement or final administrative or judicial adjudication
of the appeal, whichever is later.
(5)
Consequence(s) of Failure to
Comply with the Requirements of a Civil Citation.
(a) If a person, firm, corporation, or other
entity to whom a Civil Citation is issued fails to pay a Civil Penalty or
otherwise fails to comply with the requirements set forth in a Civil Citation,
the Department may order the cessation of all relevant activities of the
person, firm, corporation, or other entity. Said Order shall be effective
immediately upon service.
(b) If a
person, firm, corporation, or other entity to whom an Order has been issued
pursuant to
454
CMR 29.04(5)(a) is also the
holder of a License issued by the Department pursuant to M.G.L. c. 111, §
197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149,
§§ 6A through 6F½, the Director shall propose the suspension
or revocation of the License at the same time the Order is issued and shall
schedule an administrative hearing on said proposed suspension or revocation,
within ten days after such Order is issued. Said administrative hearing shall
be held in accordance with the requirements of M.G.L. c. 30A, §§ 8
through 13, and
801 CMR
1.00: Standard Adjudicatory Rules of Practice
and Procedure. Any License suspension or revocation shall also apply
to all affiliates of the person, firm, corporation, or other entity, as well as
to any successor company or corporation that the Director, upon investigation,
determines not to have true independent existence apart from that of the
violating person, firm, corporation, or other entity.
(c) No officer of any corporation, which has
failed to pay a Civil Penalty issued pursuant to
454
CMR 29.04, shall incorporate or serve as an
officer of any corporation which did not have a legal existence as of the date
that the penalty became due and payable to the Commonwealth.
(6)
Appeals of Civil
Citations, Orders and Penalties. Any person, firm, corporation or
other entity aggrieved by a Civil Citation, Order, or Penalty issued pursuant
454
CMR 29.04 may request that an administrative
hearing be held on the Civil Citation or Order by submitting a written request
to the Director or his or her representative within 15 business days after the
receipt of the Civil Citation or Order. All administrative hearings shall be
held in accordance with the requirements of M.G.L. c. 30A, and
801 CMR
1.00: Standard Adjudicatory Rules of Practice
and Procedure. Any person, firm, corporation or other entity aggrieved
of the decision of such an administrative hearing may appeal said decision
pursuant to the provisions of M.G.L. c. 30A, § 14.
(7)
Conditional Licenses, Consent
Agreements, and Settlement Agreements. The Director may issue
licenses to any person, firm, corporation or other entity, subject to
conditions specified therein, or enter into consent agreements or settlement
agreements with the holder of the license.
