Paying an Administrative Penalty

(1) A penalty shall be paid by certified check, cashier's check, or money order payable to the Massachusetts Water Resources Authority. (2) Each administrative penalty shall be paid in full as follows: (a) If the Person assessed the penalty waives its right to a hearing, the Penalty shall be paid in full no later than 30 days after the date of issuance of the Penalty Assessment Notice. 2.34: continued (b) If the Person assessed the penalty seeks a hearing under 360 CMR 1.00: Adjudicatory Proceedings and 360 CMR 2.00, the penalty shall be paid in full upon the conclusion of the hearing, as follows: 1. If the proceeding is ended by written agreement, no later than 30 days after the Executive Director approves the agreement; 2. If the proceeding is ended by a Final Decision approved and signed by the Executive Director, no later than 30 days after the approval; 3. If a civil action for judicial review of a final decision is commenced pursuant to M.G.L. c. 30A, and the court upholds the assessment in whole or in part, no later than 30 days after the date of the court's decision, unless the court orders otherwise. (c) The Authority may authorize payment of a Penalty at a time or times later than those prescribed pursuant to 360 CMR 2.34. No such authorization shall be valid, unless made by the Executive Director expressly and in writing. In the absence of any such express written authorization, the provisions of 360 CMR 2.34(2)(b) shall apply. If the Authority gives any such express written authorization, the Penalty shall be paid in full at the time or times specified. (3) A Person who fails to pay a penalty in full and on time in compliance with 360 CMR 2.34 shall be liable to the Authority for costs, interest from the time the penalty became final, and attorneys' fees, including all costs and attorney's fees incurred directly in collecting the penalty. This is in addition to any other remedy authorized by law. Interest shall be calculated at the rate set forth in M.G.L. c. 231, § 6C, for purposes of 360 CMR 2.34(3), a penalty becomes final and interest begins as follows: (a) On the date of issuance, unless it is timely appealed pursuant to 360 CMR 2.22; (b) On such date as the parties agree to in a written agreement ending an adjudicatory proceeding; (c) If a stipulated penalty is incurred under the terms of a written agreement, on the date that the stipulated penalty, including any appeal process pursuant to the terms of the agreement, becomes final; (d) On the date that a Final Decision in favor of the Authority is signed by the Executive Director; or (e) If a civil action for judicial review of a Final Decision is commenced pursuant to M.G.L. c. 30A, and the court upholds the assessment in whole or in part, from the date of entry of judgment pursuant to M.R. Civ. P. 54(d) through (f), unless the Court orders otherwise. 360 CMR 2.00 Appendix A Calculation of a Penalty pursuant to 360 CMR 2.33(1)and(6) For each discharge violation: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = Flow x 30 = Culpability x 20 = Frequency x 20 = TOTAL x $10 PENALTY AMOUNT Adjustment factors To make the violator's failure to comply more costly than if the violator had complied + To help to deter future noncompliance by the violator or others + To compensate the Authority or others for damages suffered or costs incurred + To compensate for other damages to the public health safety, welfare, or the environment + If previous penalties did not assure compliance by the violator + Violator's ability to pay - TOTAL PENALTY AFTER ADJUSTMENT $ 360 CMR 2.00: APPENDIX B Example of a Penalty calculation pursuant to 360 CMR 2.33(1)(b): Example of Facts: A sewer user has a process discharge of 20,000 gallons per day. In its last four monitoring reports, the following violations have been found: 1 lead violation at 0.4 mg/l (assume lead has a limit of 0.2 mg/l); 1 copper violation at 6.0 mg/l and one copper violation at 1.8 mg/l (assume copper has a limit of 1.0 mg/l); one mercury violation at 0.004 mg/l (assume mercury is a prohibited substance with an enforcement limit of 0.001 mg/l); and two pH violations, one at 4.2 S.U. and one at 12.4 S.U. (assume pH is a violation if it is outside the range of 5.5-12.0 S.U.). Use of the Penalty Calculation Chart: For lead at 0.4 mg/l, the Authority determining that the violation was caused by negligence in operating pretreatment: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 90 Flow x 30 = 120 Culpability x 20 = 80 Frequency x 20 = 80 TOTAL x $10 PENALTY AMOUNT $3,700 For copper at 6.0 mg/l, the Authority determining that the violation was caused by gross negligence in exceeding the design flow of the pretreatment system: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 300 Flow x 30 = 120 Culpability x 20 = 160 Frequency x 20 = 160 TOTAL x $10 PENALTY AMOUNT $7,400 For copper at 1.8 mg/l, the Authority determining that the violation was caused by gross negligence in exceeding the design flow of the pretreatment system: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 60 Flow x 30 = 120 Culpability x 20 = 160 Frequency x 20 = 160 TOTAL x $10 PENALTY AMOUNT $5,000 Appendix B: continued For mercury at 0.004 mg/l, the Authority determining that the violation was an intentional discharge of mercury without pretreatment: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 300 Flow x 30 = 120 Culpability x 20 = 200 Frequency x 20 = 80 TOTAL x $10 PENALTY AMOUNT $7,000 For pH at 4.2 S.U., the Authority determining that the pretreatment system was known by the user to be inadequate to prevent pH violations: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 150 Flow x 30 = 120 Culpability x 20 = 180 Frequency x 20 = 160 TOTAL x $10 PENALTY AMOUNT $6,100 For pH at 12.4 S.U., the Authority determining that the pretreatment system was known by the user to be inadequate to prevent pH violations: Evaluation Criteria Score Weight Factor Weighted Score Violation Magnitude x 30 = 30 Flow x 30 = 120 Culpability x 20 = 180 Frequency x 20 = 160 TOTAL x $10 PENALTY AMOUNT $4,900 Note: The penalties so calculated would then be reviewed according to the adjustment factors of 360 CMR 2.33(1)(c) and 360 CMR 2.33(6).