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PART I ADMINISTRATION OF THE GOVE RNM ENT TITLE II EXECUTIVE AND ADMINIS TRATIVE OFFICERS OF THE COMMONWEALTH CHAPTER 21A EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFA I RS Section 16 Civil administrative penalties

Section 16

. As used in this secti on the following words shall , unless the context clearly requires otherwise , have the following meanings:- "Department", the department of environmental protection

. "Person ", any agency or political subd ivision of the commonwealth , any state , public or private corporat ion or authority , individual, trust firm , joint stock company , partnership , association or other entity or any group thereof or any officer , employee or agent thereof

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The department may assess a civil administrative penalty on a person who fails to comply with any provision of any regulation, order , license or approval issued or adopted by the department , or of any law which the department has the authority or responsibility to enforce; provided , however , that such noncompliance occurred after the department had given such person written notice of such noncompliance, and after reasonable time , as determined by the department and stated in said notice , had elapsed for coming into compl ia nce ; and provided , further , that the department may assess such penalty without providing such written notice if such failure to comp ly : ( 1) was part of a pattern of noncompliance and not an isolated instance , or (2) was willful and not the resu lt of error , or (3) resulted in significant impact on public health, safety , welfa re or the environment , or (4) consisted of failure to promptly report to the department (a) any unauthorized disposal of hazardous waste , as is defined by chapter twenty-one C, or (b) any unauthorized release or discharge of oil or hazardous material into the environment, as are defined by chapter twenty
-one E , or (5) cons isted of failu re to maintain a permanent solution or a remedy operation status , pursuant to chapter 21 E, or (6) cons isted of failure to comply with the terms of an activity and use limitation pursuant to sect ion 6 of said chapter 21 E or consisted of knowingly making , or causing any person to make , a false , i naccurate , i ncomp iete or misleading statement in a document submitted to or required to be kept by the department. Any such penalty shall be an alternative to any other civil penalty that may be prescribed by law. For the purpose of determining whether such noncompliance was part of a pattern of no ncompliance and not an isolated instance , the department shall consider , but not be l i mited to , the following: whether the department had prev iously notified the person of su c h noncompliance on two occasions during the previous four-year period or of any noncomp l iance with the same provision of a

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law, regulation, order , license or approval as the current noncompliance during the previous five-year period ; whether the current and previous noncompliances occurred at the same facility; and whether the current and previous noncompliances , considered together, indicate a potential threat to public health, safety, welfare or the environment or an interference with the department's ability to efficiently and effectively administer its programs or to enforce any regulation, order, license or approval it has issued or adopted or any law which it has authority or responsibility to enforce. If a person who has received a notice of noncompliance fails to come into compliance with i n the time period stated in such notice , the civil administrative penalty may be assessed by the department upon such person from the date of receipt of such notice.
Whenever the department seeks to assess a civil administrative penalty on any person , the department shall cause to be served upon such person , either by service , in hand, or by certified mail, return receipt requested, a written not ice of its intent to assess a civil administrative penalty which shall include a concise statement of the alleged act o r omission for which such civil administrative penalty is sought to be assessed , each law, regulation, order, license or approva l which has not been complied with as a result of such alleged act o r omission, the amount which the department seeks to assess as a civil administrative penalty for each such alleged act or omission, a statement of such person ' s right to an adjudicatory hearing on the proposed assessment, the requirements such person must comply with to avoid being deemed to have waived the right to an adjudicatory hearing and the manner of payment thereof if such person elects to pay the penalty and waive an adjud icatory hearing. After written notice of noncompliance or intent to assess a civil administrative penalty has been given, each such day thereafter duri ng which such noncompliance occurs or continues shall constitute a separate offense and shall be subject to a separate civ i l administrative penalty if reasonable efforts have not been made to prompt ly come into compliance

. Whenever the department seeks to assess a civil administrative penalty on any person , such person shall have the right to an adjudicatory hearing under chapter thirty A whose provisions shall apply except when they are inconsistent with the provisions of this section

. Su c h person shall be deemed to have waived such right to an adjudicatory hearing unless , within twenty
-one days of the date of the department ' s notice that it seeks to assess a civil administrat ive penalty , such person files with the department a written statement denying the occurrence of any of the acts or omissions alleged by the department in such notice , or asserting that the money amount of the proposed civil administrative penalty is excessive. I n an y adjudicatory hearing authorized pursuant to chapter thirty A , the department shall. by a preponderance of the evidence , prove the occurrence of each act or omission alleged by the department.

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If a person wa ives his right to an adjudicatory hearing , the proposed civil administrative pena lty sha ll be final immediate ly upon such waiver

. If a c ivil adm in istrative penalty is assessed at the conclus ion of an adjudicatory hearing , said civi l administrative penalty shall be final upon the expiration of thirty days if no action for judicial review of such deci s ion is commenced p u rsuant to chap ter thirty A. Any person who inst itutes proceedings for judicial review of the final assessment of a civil administrative penalty shall place the fu ll amount of the fina l assessment in an interest

bearing escrow account in th e custody of the clerk/magistrate of the review i ng court. The establishment of such an interest-bearing escrow account shall be a condition precedent to the jurisdict ion of the reviewing court unle&s the party seeking j udicial review demonstrates in a prelimina r y hea ri ng held w it h in twenty days of the filing of the complain t eithe r the presence of a substan t ial question for rev iew by the court or an inability to pay

. Upon such a demonstration , the court may grant an extension or waiver of the interest-bearing escrow account or may requ i re , in lieu of such interest-bearing escrow account , the posting of a bond payable directly to the commonwealth in the amount of one hundred and twenty-five per cent of the assessed penalty

. If , after judicial review , in a case where the requirement for an escrow account has been wa ived , and in cases where a bond has been posted in lieu of such requirement , t he court affi rms , in who le or in part , the assessment of a civ i l administrative penal ty the depa rt ment shal l be paid the amount thereof together with interest at the rate set forth in secti o n s ix C of cha pte r two hundred and thirty

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. If , after such rev iew in a case where an interest-bearing escrow account has been established, the court affirms the assessment of such penalty , in whole or in part , the department shall be paid the amount thereof together with the accumulated interest thereon in such interest-beari ng escrow account. If the court sets as ide the assessment of a civil administrative penalty in a case where the amount of such pe n alty has been deposited in an interest-beari ng escrow account , the person on whom the civi l administ rative penalty was assessed shall be repaid the amount so set aside , together with the accumulated interest thereon.
Each person who fai ls to pay a civil adm i nistrative penalty on time, and each person who issues a bond pursuant to th is section and who fails to pay to the commonwealth on time the amount requ i red hereunder , shall be liable to the commonwealth for up to three times the amount of the civil administrative penalty , together with costs , plus interest from the time the civil administrat ive penalty became final and attorneys' fees , including al l costs and attorneys' fees incurred directly in the collection thereof. The rate of interest shall be the rate set forth in section six C of chapter two hundred and thirty-one

. Notwithstanding any general or special law to the contrary , includ i ng the limitations and cons iderations set forth in this section , the department may require that the amount of a civil administrat ive penalty imposed pursuant to this section exceed the econom ic benefit realized by a person for noncompliance

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In determining the amount of each civil administrative penalty , the department shall include , but not be limited to , the following in its considerations: the actual and potentia l impact on public health , safety and welfare and the environment of the failure to comply ; the actual and potential damages suffered , and actual or potential costs incurred , by the commonwealth, or by any other person; whether the person being assessed the civil administrative penalty took steps to prevent noncompliance , to prompt ly come into compliance and to rem edy and mitigate whatever harm might have been done as a result of such noncompliance ; whethe r the person being assessed the civil administrative penalty has previously fa i led to comply with any regulation , order, license or approval issued or adopted by the depa rt ment, or any law which the department has the authority or responsibility to enforce ; making compliance less costly than noncompl iance; deterring future noncompliance ; the financial condition of the person being assessed the c iv i l administrative penalty ; and the publ ic interest.
No civil administrative penal ty assessed hereunder shall be less than one hund red dollars

. For each of the following fa i lures to comply , the civi l administrative penalty shall not exceed twenty-five thousand dollars ; a failure to comply that is part of a pattern of noncompliance and not an isolated instance; knowingly making , or causing any person to make , any false , inaccurate , incomplete or misleading statement i n any document submitted to or required to be kept by the department each release , discharge, or disposal of material into the environment without the approval of the department, or in a manner not approved by the department , whenever such re lease , discharge or disposal requires the approval of the department ; engaging in any business or activity without a license o r othe r authorization from the department, whenever engaging in such business or activ ity requ i res such license or authorization by the department ; failure to promptly report to the department each unauthorized disposa l of hazardous waste , as defined by chapte r twenty-o ne C; and failure to promptly report to the department each unauthorized release o r d ischarge of oil o r hazardous materials into the environment , as defined by chapter twenty
-one E , or a fa i lu re to maintain a permanent solution or remedy operation status, pursuant to said chapter 21 E or a failure to comply with the terms of an activity and use limitation pursuant to section 6 of said chapter 21E. Any person who fails to comply with or otherwise violates the provis ions of chapter one hundred and eleven F enforceable by the department sha ll be l iable for a civ i l administrative penalty not to exceed two hundred and fifty dollars per day for each day that such violation continues and the department shall follow the procedures set forth therein in assessing such penalty. Any person who fails to comply with or otherwise violates chapter 2 1E or any regulation adopted thereunder shall be l iable for a civil administrat ive penalty not to exceed $25 , 000 for each day the violation continues

. For any other failure to comply with any regulation , order , license or approval issued or adopted by the dep a rt m ent , or any law which

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the department has authority or responsibility to enforce , the civil administrative penalty for each failure to comply shall not exceed one thousand dollars

. Any person who fails to comply with or otherwise violates chapter 21 N shall be liable for a civil administrative penalty not to exceed $25 ,000 for each day the violation continues

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