General Laws: CHAPTER 21A Section 16 Page 1 of 5 

PART I ADMINISTRATION OF THE GOVE RNM ENT 

TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS 

OF THE COMMONWEAL TH 

CHAPTER 21A EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS 

Section 16 Civil administrative penalties 

Section 16. As used in this section 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 subdivision of the commonwealth, any state, public or 

private corporation or authority, individual, trust firm , joint stock company, partnership, 

association or other entity or any group thereof or any officer, employee or agent thereof. 

Print 

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 compliance; and 

provided, further, that the department may assess such penalty without providing such written 

notice if such failure to comply: ( 1) was part of a pattern of noncompliance and not an 

isolated instance, or (2) was willful and not the result of error, or (3) resulted in significant 

impact on public health, safety, welfare 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) 

consisted of failure to maintain a permanent solution or a remedy operation status, pursuant 

to chapter 21 E, or (6) consisted of failure to comply with the terms of an activity and use 

limitation pursuant to section 6 of said chapter 21 E or consisted of knowingly making, or 

causing any person to make, a false, inaccurate, incompiete 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 noncompliance and not an 

isolated instance, the department shall consider, but not be limited to, the following: whether 

the department had previously notified the person of such noncompliance on two occasions 

during the previous four-year period or of any noncompliance 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 within 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 notice of its intent to assess a civil 

administrative penalty which shall include a concise statement of the alleged act or omission 

for which such civil administrative penalty is sought to be assessed , each law, regulation, 

order, license or approval which has not been complied with as a result of such alleged act or 

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 adjudicatory hearing. 

After written notice of noncompliance or intent to assess a civil administrative penalty has 

been given, each such day thereafter during which such noncompliance occurs or continues 

shall constitute a separate offense and shall be subject to a separate civil administrative 

penalty if reasonable efforts have not been made to promptly 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. 

Such 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 

administrative 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. In 

any 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 waives his right to an adjudicatory hearing, the proposed civil administrative 

penalty shall be final immediately upon such waiver. 

If a civil administrative penalty is assessed at the conclusion 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 decision is commenced pursuant to chapter thirty A. 

Any person who institutes proceedings for judicial review of the final assessment of a civil 

administrative penalty shall place the fu ll amount of the final assessment in an interestbearing escrow account in the custody of the clerk/magistrate of the reviewing court. The 

establishment of such an interest-bearing escrow account shall be a condition precedent to 

the jurisdiction of the reviewing court unle&s the party seeking judicial review demonstrates in 

a preliminary hearing held within twenty days of the filing of the complaint either the presence 

of a substantial question for review 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 require, 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 waived, and in cases where a bond has been posted in lieu of such 

requirement, the court affirms, in whole or in part, the assessment of a civil administrative 

penalty the department shal l be paid the amount thereof together with interest at the rate set 

forth in section six C of chapter two hundred and thirty-one. If, after such review 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-bearing escrow 

account. If the court sets aside the assessment of a civil administrative penalty in a case 

where the amount of such penalty has been deposited in an interest-bearing escrow account, 

the person on whom the civi l administrative 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 administrative penalty on time, and each person who 

issues a bond pursuant to this section and who fails to pay to the commonwealth on time the 

amount required 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 administrative penalty became final and attorneys' fees, including all 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, including the limitations and considerations set forth in this section, the 

department may require that the amount of a civil administrative penalty imposed pursuant to 

this section exceed the economic 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 potential 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 promptly come into compliance and to remedy and 

mitigate whatever harm might have been done as a result of such noncompliance; whether 

the person being assessed the civil administrative 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 the authority or responsibility to enforce; making compliance 

less costly than noncompliance; deterring future noncompliance; the financial condition of the 

person being assessed the civil administrative penalty; and the public interest. 

No civil administrative penalty assessed hereunder shall be less than one hundred dollars. 

For each of the following failures to comply, the civil 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 in 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 release, discharge or disposal requires the approval of the 

department; engaging in any business or activity without a license or other authorization from 

the department, whenever engaging in such business or activity requires such license or 

authorization by the department; failure to promptly report to the department each 

unauthorized disposal of hazardous waste, as defined by chapter twenty-one C; and failure to 

promptly report to the department each unauthorized release or discharge of oil or hazardous 

materials into the environment, as defined by chapter twenty-one E, or a failure 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 provisions of chapter one 

hundred and eleven F enforceable by the department shall be liable for a civil 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 21 E or any 

regulation adopted thereunder shall be liable for a civil administrative 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 department, 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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