Pattern of Noncompliance

(1) Criteria to be Considered in Determining Whether Instances of Noncompliance Constitute a Pattern of Noncompliance for which a Civil Administrative Penalty May Be Assessed. A Penalty may be assessed without the prior issuance of a Noncompliance Notice if the criteria set forth in 310 CMR 5.11 are met and the violation thus being penalized is not an isolated instance but part of a pattern of noncompliance. In determining whether the violation to be thus penalized is not an isolated instance but part of a pattern of noncompliance, the Department shall consider, but shall not be limited to considering, the following criteria: (a) Whether the person who would be assessed the Penalty was givenbythe Department, on at least one previous occasion during the five-year period prior to the date of the Penalty Assessment Notice, a Noncompliance Notice asserting violation(s) of the Same Requirement(s) as the Requirement(s) for violation of which the person would be assessed the Penalty. Solely for purposes of implementing 310 CMR 5.13(1)(a), violations occurring prior to September18, 1985 shall not be considered. (b) Whether the person who would be assessed the Penalty was given by the Department, on at least two previous occasions during the four-year period prior to the date of the Penalty Assessment Notice, a Noncompliance Notice asserting violation(s) of Requirement(s) different from the Requirement(s) for violation of which the person would be assessed the Penalty. Solely for purposes of implementing 310 CMR 5.13(1)(b), violations occurring prior to June 26, 1986 shall not be considered. (c) Whether the violation for which the person would be assessed the Penalty and the other violation(s) described in the prior Noncompliance Notice(s) occurred at the same facility. (d) Whether the violation for which the person would be assessed the Penalty and the other violation(s) described in the prior Noncompliance Notice(s), considered together, indicate: 1. a potential threat to public health, safety, or welfare, or the environment; or 2. an interference with the Department's ability to efficiently and effectively administer its programs; or 3. an interference with the Department's ability to efficiently and effectively enforce any Requirement to which 310 CMR 5.00 apply. (2) Additional Criteria to be Considered in Determining Whether Instances of Noncompliance Constitute a Pattern of Noncompliance for which a Civil Administrative Penalty May Be Assessed. Indeterminingwhether the violation to be penalized is not an isolated instance but part of a patternof noncompliance, the Department may consider, but shall not be limited to considering, the following criteria: (a) 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). (b) 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). (c) 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). (d) 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).