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 Noncompliance Notice has been given to that person as set forth in 310 CMR 5.12, or (b) a Noncompliance Notice has not been given to that person but the failure to comply was as set forth in 310 CMR 5.10(2)(b) through (h). (2) Content of a Notice of Noncompliance. A Noncompliance Notice shall: (a) describe one or more Requirement(s) in effect when the Noncompliance Notice was given, and for each such Requirement, the occasion(s) that the Department asserts said person was not in compliance therewith; and (b) specify a reasonable deadline or deadlines by which the person shall either 1. come into compliance with the Requirement(s) described in the Noncompliance Notice, or 2. submit to the Department a written proposal setting forth how and when that person proposes to come into compliance with the Requirement(s) described in the Noncompliance Notice. (3) Criteria to be Considered in Determining Whether a Civil Administrative Penalty May Be Assessed After a Notice ofNoncompliance Has Been Given. The Department may assess a Penalty on any person when the criteria set forth in 310 CMR 5.11 are met, and the following criteria are met: (a) The Department has previously given that person a Noncompliance Notice. Solely for purposes of implementing 310 CMR 5.12(3), the violation(s) described in the Noncompliance Notice must have occurred on or after September 18, 1985. (b) That person did not: 1. come into compliance, within the deadline specified in the Noncompliance Notice, with the Requirement(s) described in the Noncompliance Notice, or 2. submit, within the deadline specified in the Noncompliance Notice, a written proposal setting forth how and when that person proposed to come into compliance with the Requirement(s) described in the Noncompliance Notice. (c) Noncompliance with the Requirement(s) described in the Noncompliance Notice continued or was repeated on or after the deadline(s) specified in the Noncompliance Notice. (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 Penaltyafter a Notice of Noncompliance has been given, the Department may consider, but shallnot be limited to considering, the following criteria: (a) Whether or not five years or less have elapsed betweenthe date ofthe most recent notice of noncompliance with the Requirement(s) for which a Penalty would be assessed and the date of the Penalty Assessment Notice. (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 Noncompliance Notice(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 Noncompliance Notice(s). (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 Noncompliance Notice(s). (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 Noncompliance Notice(s).