Code of Massachusetts Regulations › 360 CMR - MASSACHUSETTS WATER RESOURCE AUTHORITY › Title 360 CMR 2.00 - Enforcement And Administrative Penalties › ADMINISTRATIVE PENALTIES › Section 2.33 - Determining the Amount of an Administrative Penalty

Current through Register 1525, July 5, 2024
The amount of each Penalty to be assessed under
							360 CMR 2.00 shall be determined
							as follows:
(1) For each violation of a
						discharge standard found at
						360 CMR
						10.021:
General Prohibitions,
360 CMR
						10.023:
Specific Prohibitions,
or
						360 CMR
						10.024:
Specific Discharge
						Limitations/Local Limits,
of a discharge standard contained in a permit
						or order issued by the Authority, or of a National Pretreatment Standard
						applicable to the discharge, the amount of the penalty for each violation shall
						be determined as follows:
(a) Four criteria
						shall be considered: violation magnitude; flow; culpability; and frequency. For
						each criterion, a numerical score shall be calculated and that score shall be
						multiplied by the weight factor for that criterion. The four weighted scores
						shall then be totaled and then multiplied by $10 to yield a penalty amount for
						each violation. The weight factors for each criterion shall be as follows:
1.
Violation magnitude
30
2.
Flow
30
3.
Culpability
20
4.
Frequency
20
(b) The
						numerical scores for the criteria identified in 360 CMR 2.33(1)(a) shall be
						calculated as follows:
1.
Violation
						Magnitude
. The violation magnitude score for a violation of
						360 CMR
						10.024(2),
						360 CMR 10.023(3) and
						(10), of a limit contained in a permit issued
						by the Authority, and of a limit contained in a National Categorical Pretreatment
						Standard shall be calculated based on the magnitude the violation exceeds the
						standard it must meet, according to the following chart:
Ratio of Violation Over Limit
(how many times the violation was greater than the
												limit)
Score
1.01 - 1.49
1
1.5 -1.99
2
2.0 - 2.49
3
2.5 - 2.99
4
3.0 - 3.49
5
3.5 - 3.99
6
4.0 - 4.49
7
4.5 - 4.99
8
5.0 - 5.49
9
5.5 and above
10
A violation of
							360 CMR
							10.021:
General Prohibitions,
360 CMR 10.023(4), (5), (7),
							(8), (9), (12), (13), (14), (15), (16), (17), (18), (20) or
							(21), and
							360 CMR
							10.024(1)  shall receive an
							automatic violation magnitude score of 10. A violation of
							360 CMR 10.023(1), (2), (11)
							or (19) shall receive a violation magnitude
							score equal to the flow score it receives. A violation of
							360 CMR 10.023(6)
							 shall receive the following score:
Standard Units
Score
5.0-5.4 or 12.1- 12.5
1
4.0-4.9 or 12.6- 13.0
5
below 4.0 or above 13.0
10
2.
Flow
. The flow score shall be calculated, based on the
						number of gallons of wastewater discharged (known or estimated) by the violator
						on the day of the violation, according to the following chart:
Gallons Discharged
Score
up to 1,000
1
1,001 - 5,000
2
5,001 - 15,000
3
15,001 - 25,000
4
25,001 - 35,000
5
35,001 - 45,000
6
45,001 - 55,000
7
55,001 - 65,000
8
65,001 - 75,000
9
75,001 and above
10
The flow chart in 360 CMR 2.33(1)(b) shall not apply to a
							violation of
							360 CMR
							10.021:
General Prohibitions,
or
							360 CMR 10.023(4), (5), (7),
							(8), (9), and (13) through (21); such violation
							shall receive an automatic flow score of 10, regardless of the gallons
							discharged.
3.
Culpability
. The culpability score shall be determined
						on the basis of how culpable the violator was for the discharge violation. A
						scale of zero to ten shall be used, with zero being no culpability and ten being
						the highest level of culpability. Factors to consider in determining the
						culpability score include:
a.
Score
						of 10
: Intentional action or inaction causing the discharge
						violation. Examples may include: discharging without pretreatment; not operating
						pretreatment; intentionally operating pretreatment or production equipment
						improperly or without appropriate maintenance; continued knowing violations; no
						pretreatment for the violated pollutant; intentionally bypassing pretreatment;
						dumping untreated vats, containers or other vessels; frequent spills or upsets
						without having taken measures to prevent reoccurrence; untrained or unqualified
						staff; inadequate number of pretreatment staff; no meaningful attempts to prevent
						the violation.
b.
Score
						of 7 to 9
: Grossly inadequate or improper action or inaction causing
						the discharge violation. Examples may include: clearly inadequate pretreatment;
						grossly inadequate or improper operation or maintenance of pretreatment or
						production equipment; gross production or pretreatment errors; frequent spills or
						upsets; poorly or infrequently trained staff; pretreatment staff unavailability;
						a history of violations with clearly inadequate attempts to prevent the
						violation.
c.
Score of 3
						to 6
: Inadequate or improper action or inaction causing the
						discharge violation. Examples may include: inadequate pretreatment; inadequate or
						improper operation or maintenance of pretreatment or production equipment;
						occasional production or pretreatment errors; rare spills or upsets; recent
						change in production or pretreatment; a history of violations with minimal and
						inadequate attempts to prevent the violations.
d.
Score of 1 or 2
:
						Inadvertent action or inaction causing the discharge violation. Examples may
						include: rare spill or production or pretreatment error that would be
						unanticipated during the normal course of events but that is not an upset; a
						history of few violations and reasonable attempts to prevent
						violations.
e.
Score of
						0
: One-time unavoidable accident or an upset for which an
						affirmative defense is not available.
4.
Frequency
. The
						frequency score shall be calculated on the basis of how often the violation of
						the particular pollutant requirement occurred over a period of time as follows:
Percentage in Violation
Score
up to 10%
2
11-25%
4
26 - 40%
6
41 - 55%
8
over 55%
10
The period of time shall be from the first to last date for
							which a penalty is assessed in the Penalty Assessment Notice, unless the Penalty
							Assessment Notice uses another time period and states why a greater or lesser
							time period is used. The percentage shall be based on those days for which the
							nature of the discharge at issue is known.
(c) A penalty may be increased over the amount
						calculated according to 360 CMR 2.33(1)(a) and (b) for one or more of the
						following reasons:
1. to make the violator's
						failure to comply more costly than if the violator had complied;
2. to help to deter future noncompliance by the
						violator or others;
3. to compensate
						the Authority or others for damages suffered or costs incurred as a result of
						each violation, including costs incurred by the Authority for activities
						undertaken to assess the penalty and assure compliance (such as monitoring and
						inspecting costs);
4. if previous
						penalties imposed on the violator by the Authority, or by a court for violation
						of an Authority requirement, did not assure compliance by the violator;
						and/or;
5. to compensate for other
						damages to the public health, safety, welfare, or the environment, caused by the
						violation.
If more than one violation is assessed a penalty in a Penalty
							Assessment Notice, the increase may be applied either to individual penalty
							amounts or to the total penalty assessed in the Penalty Assessment Notice. In no
							event shall such increase result in a single violation being penalized in excess
							of $10,000.00.
(d)
										360 CMR 2.00:
Appendix
						A
contains a chart that may be used to calculate a penalty pursuant to
						360 CMR 2.33.
						360 CMR 2.00:
Appendix
						B
contains examples of penalty computations.