Enforcement Provisions

(1) Wherever 310 CMR 19.000, or any approvals or orders issued pursuant thereto, requires that the owner and/or operator shall take action or refrain from taking action, the owner and operator shall be jointly and severally liable such that the Department may take action for any violations of 310 CMR 19.000 against the owner, the operator or both. (2) General. No standard, requirement or condition established in 310 CMR 19.000 or provision of any permit, authorization, modification, determination, or other approval or order or other enforcement document issued pursuant to 310 CMR 19.000, shall be construed to limit any right of the Department to take enforcement action pursuant to any other authority. Any failure by any person whose activities are governed by M.G.L. c. 111, § 150A and 310 CMR 19.000, to comply fully with the provisions thereunder or the terms and conditions of any order, permit, authorization, modification, determination, or other approval or order or other enforcement document issued pursuant to 310 CMR 19.000, or with the terms of a site assignment, shall constitute a violation of M.G.L. c. 111, § 150A and 310 CMR 19.000. It shall also be a violation of 310 CMR 19.000 for any person to: (a) Fail to submit a certification, log, application for a permit or permit modification, plan, report, third-party inspection report, or any other document within the time period specified in 310 CMR 19.000 or in any approval, order, or permit issued by the Department; (b) Provide or cause to be provided any false, inaccurate, incomplete or misleading information, in any certification, log, application for a permit or permit modification, plan, report, third-party inspection report, third-party inspector qualifications statement, or any other document which that person is required to submit to the Department pursuant to 310 CMR 19.000; (c) Provide any false, inaccurate, incomplete or misleading information to a third-party inspector or influence a third-party inspector to provide any false, inaccurate, incomplete or misleading information in any certification, third-party inspection report or other submittal to the Department pursuant to 310 CMR 19.000; (d) Alter or misrepresent the findings or recommendations made by a third-party inspector in a third-party inspection report submitted to the Department pursuant to 310 CMR 19.018; (e) Hold himself or herself out as a responsible official when he or she is not fully authorized to bind the entity he or she claims to bind; (f) Fail to comply fully with the applicable standards, requirements or conditions established in 310 CMR 19.000 or with the provisions of any permit, authorization, modification, determination, or other approval or order issued, or with the terms and conditions of any certification submitted, pursuant to 310 CMR 19.000; (g) Act without submitting a certification in accordance with 310 CMR 19.000 or without a permit or other approval issued pursuant to 310 CMR 19.000 or site assignment where one is required; or (h) Violate any other provision of 310 CMR 19.000. (3) Action by the Department. Whenever the Department has cause to believe that a violation has occurred, it may without limitation: (a) order the owner or operator of the site or facility, or any other person responsible for the violation, to cease operations until the violation is corrected to the satisfaction of the Department, or until such person obtains a site assignment, solid waste facility permit, and any other applicable approval pursuant to 310 CMR 19.000, or other applicable permit pursuant to 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities; (b) order the owner or operator of the site or facility, or any other person responsible for the violation, to cease immediately or at a specified date all illegal activity, and to comply fully with M.G.L. c. 21A, §§ 2 and 8, St. 1987, c. 584, M.G.L. c. 21H, M.G.L. c. 111, §§ 150A and 150A½, 310 CMR 19.000, or any permit, authorization, certification, determination, or approval submitted or issued pursuant to 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities or 310 CMR 19.000; (c) order the owner or operator of the site or facility, or other person responsible for the violation, to take appropriate remedial measures, immediately or by a specified date , to bring the site or facility into compliance to the satisfaction of the Department or to protect public health or safety or the environmental resources of the Commonwealth, including without limitation, closure of the site or facility; (d) commence proceedings pursuant to 310 CMR 19.036 to rescind, suspend, revoke, or modify a permit; (e) commence proceedings pursuant to M.G.L. c. 111, § 150A to rescind, suspend, or modify a site assignment; (f) issue a notice of non-compliance or assess a civil administrative penalty pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty or initiate an enforcement action in accordance with applicable statutes and regulations; (g) refer the matter to the Attorney General for civil or criminal action pursuant to any applicable statute; or (h) take such other action as provided by 310 CMR 19.000 or other applicable statutory or regulatory authority as the Commissioner deems appropriate. (4) Service of Notices and Orders. Service in all civil administrative penalty actions is governed by 310 CMR 5.00: Administrative Penalty. The Department serves an order according to the following procedure except for processes, notices, and orders issued in the course of an adjudicatory hearing, which are governed by the provisions of 310 CMR 1.00: Adjudicatory Proceedings: (a) Service of an order may be made via hand delivery or mail. Service of an order when made by any form of mail requiring the return of a receipt signed by the person to be served is complete upon receipt by the person or by any officer, employee, or agent of the person authorized by appointment of the person or by law to accept service. The fact and date of service is established by the returned receipt or by affidavit of the person who hand delivery the order. (b) The Department may make service of an order in any other manner, including any form of telecommunications or publication, that is reasonably calculated to give actual notice of the order to the person to be served. The Department may uses such alternative or substitute methods of service when the recipient refuses to accept service by the means set forth in 310 CMR 19.081(4)(a) or when exigent circumstances require its doing so. The fact and date of service in such cases is established by such records as may be available. (5) Right to Adjudicatory Hearing. Subject to the provisions of 310 CMR 19.081(6), a person who is the subject of an order issued pursuant to 310 CMR 19.081(3) shall have the right to an adjudicatory hearing on such order pursuant to 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection. Any right to an adjudicatory hearing concerning assessment of a civil administrative penalty shall be determined in accordance with the provisions of 310 CMR 5.00: Administrative Penalty. (6) Waiver of Right to Adjudicatory Hearing. Any person who is the subject of an order issued pursuant to 310 CMR 19.081(3) shall be deemed to have waived the right to an adjudicatory hearing, unless, within 21 days of the date of service of the order, the Department receives a written statement setting forth the basis for the request, subject to and in compliance with the applicable provisions of 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection. (7) Burden of Persuasion. In an adjudicatory hearing under 310 CMR 19.081(5), the burden shall be on the person conducting the solid waste activities regulated pursuant to 310 CMR 19.000 to persuade the Department that: (a) the solid waste activity does not create public nuisance conditions and does not pose a threat to public health, safety or the environment; and (b) the person conducting the solid waste activities is and will continue to be in compliance with M.G.L. c. 111, § 150A and 310 CMR 19.000.