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

Current through Register 1525, July 5, 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.