Notice of Noncompliance

(1) Criteria for Determining Whether Prior Issuance of a Notice of Noncompliance Is Required for Assessment of a Civil Administrative Penalty. A penalty may be assessed only if either: (a) a Notice of Noncompliance has been given to that person as set forth in 309 CMR 8.03; or (b) a Notice of Noncompliance has not been given to that person but the failure to comply was as set forth in 309 CMR 8.01(2)(b), (c) or (d). (2) Content of a Notice of Noncompliance. A Notice of Noncompliance shall: (a) describe one or more requirement(s) in effect when the Notice of Noncompliance was given, and for each such Requirement, the occasion(s) that the Board asserts said person was not in compliance therewith; and (b) specify a reasonable deadline or deadlines by which the person shall come into compliance with the requirement(s) described in the Notice of Noncompliance. (Mass. Register #1566, 01/30/2026) 8.03: continued (3) Criteria to be Considered in Determining Whether a Civil Administrative Penalty May Be Assessed After a Notice of Noncompliance Has Been Given. The Board may assess a penalty on any person when the criteria set forth in 309 CMR 8.02 and the following criteria are met: (a) the Board has previously given that person a Notice of Noncompliance; (b) that person did not: 1. come into compliance, within the deadline specified in the Notice of Noncompliance, with the requirement(s) described in the Notice of Noncompliance, or 2. submit, within the deadline specified in the Notice of Noncompliance, a written pro- posal setting forth how and when that person proposes to come into compliance with the requirement(s) described in the Notice of Noncompliance; and (c) noncompliance with the requirement(s) described in the Notice of Noncompliance con- tinued or was repeated on or after the deadline(s) specified in the Notice of Noncompliance. (4) Additional Criteria to be Considered in Determining Whether a Civil Administrative Penalty May Be Assessed After a Notice of Noncompliance Has Been Given. In determining whether to assess a penalty after a Notice of Noncompliance has been given, the Board may consider, but shall not be limited to considering, the following criteria: (a) whether or not other notices of non compliance have been issued to the same person within the preceding five years; (b) what the person did to prevent the violation for which the person would be assessed the penalty and the other violation(s) described in the prior Notice of Noncompliance(s); (c) what the person did, and how quickly the person acted, to come into compliance after the occurrence of the violation for which the person would be assessed the penalty and the other violation(s) described in the prior Notice(s) of Noncompliance; (d) what the person did, and how quickly the person acted, to remedy and mitigate whatever harm might have been done as a result of the occurrence of the violation for which the person would be assessed the penalty and the other violation(s) described in the prior Notice(s) of Noncompliance; and (e) the actual and potential damages suffered, and actual or potential costs incurred, by the Commonwealth, or by any other person, as a result of the occurrence of the violation for which the person would be assessed the penalty and the other violation(s) described in the prior Notice(s) of Noncompliance.