Suspension and Revocation of Permits; Assessment of Fines; Immediate Shut-down; Appeals

(1) Scope. 520 CMR 14.05 establishes the suspension and revocation procedures for all permits, establishes the penalty structure for the assessment of administrative penalties and sets forth the procedure for immediate shut down of the site. (2) Revocation and Suspension of Permit by Permitting Authority. The permitting authority may, after a hearing, suspend or revoke a permit issued pursuant 520 CMR 14.03. All hearings under 520 CMR 14.05 shall be held in accordance with M.G.L. c. 30A and 801 CMR 1.02. Each permitting authority shall have the discretion to establish the grounds consistent with 520 CMR 14.00 for a suspension or revocation however such suspension or revocation shall not be imposed in a manner which directly, substantially or specifically regulates the occupational safety or health of any employee engaged in employment covered by the Federal Occupational Safety and Health Act. (3) Assessment of Fines by the Department of Public Safety. (a) Notwithstanding any action taken by a permitting authority pursuant to 520 CMR 14.05(2), the Department of Public Safety may assess administrative fines against the excavator in accordance with M.G.L. c. 82A § 1. (b) Penalty Structure. Whenever the Department of Public Safety finds upon inspection, investigation or other information in its possession, that a violation of any provision of 520 CMR 14.00 has occurred, the Department may assess an administrative penalty not to exceed $5,000.00 for each violation. Each day during which a violation exists shall constitute a separate offense. (c) Factors in Determining Amount of Penalty. In determining the amount of the administrative penalty, the Department of Public Safety may consider one or more of the following: 1. The willfulness of the violation; 2. Previous violations resulting in the imposition of administrative penalties as set forth in the rules of the Department of Public Safety; 3. Whether the violation resulted in an accident involving bodily injury or death to a member of the general public; 4. The actual or potential danger to the public; 5. Whether the excavator did everything reasonable to attempt to comply with 520 CMR 14.00; 6. Actions, if any, taken by the permitting authority; 7. Whether imposition of the administrative penalty is likely to deter future noncompliance; and 8. The interests of public safety. (d) Notice. The Department of Public Safety shall send written notice of alleged violation(s) and intent to impose administrative penalties to the violator. The Notice shall specify: 1. The specific condition(s) which constitute the violation; 2. The provision(s) of 520 CMR 14.00 with which there has been non-compliance; 3. The amount that is to be assessed as a penalty for each alleged violation; 4. The procedure for requesting a hearing as set forth in 520 CMR 14.05(7). (e) Hearings. Written requests for a hearing must be filed with the Department of Public Safety within ten calendar days of receipt of the notice of violation issued pursuant to 520 CMR 14.05(7). (4) The failure to make a timely request for a hearing shall constitute a waiver of the right to a hearing and imposition of the penalty set forth in the Notice. A hearing shall be commenced by the Department of Public Safety within a reasonable period after the request for a hearing has been received by the Department of Public Safety. Any person aggrieved by a determination of the Department of Public Safety may appeal to the Superior Court in accordance with M.G.L. c. 30A, §14. (5) Immediate Shutdown by State or Local Authorities. (a) Whenever the permitting authority, or an inspector from either the Department of Public Safety or the Division of Occupational Safety deems a condition at a trench site to be a threat to public safety he may order that the area around the trench be made safe for the general public and may further order the immediate shutdown of the site until such time as the condition has been corrected to the satisfaction of the authority responsible for the immediate shutdown. (b) Conditions which warrant immediate shutdown of a trench site by the local permitting authority, an inspector from the Department of Public Safety or the Division of Occupational Safety may include: 1. A fatality or serious injury to a member of the general public; 2. Failure to use protections for the General Public in accordance with 520 CMR 14.00 or an ineffective use of any protection for the General Public allowed by 520 CMR 14.04; 3. Failure to obtain a permit from the permitting authority; 4. Any other condition that constitutes a serious threat to life, limb or property of the general public as determined by the permitting authority, an inspector from the Department of Public Safety, or the Division of Occupational Safety. (6) Re-inspection Following Immediate Shutdown. The trench site shall remain closed until all necessary repairs and corrections have been made to the satisfaction of the authority responsible for the immediate shutdown, provided however, that the Department of Public Safety and Division of Occupational Safety shall have concurrent jurisdiction to authorize the reopening of a trench shut down by either agency. Reopening of the site may not occur until the site has been inspected by the authority ordering the immediate shutdown and found to be safe for reopening and operation; said inspection shall occur within two business days of written notification by the Excavator to the Permitting Authority that it has complied with all repairs and corrections ordered by the Permitting Authority. (7) Appeal from Immediate Shutdown. Any person aggrieved by the decision by the Department of Public Safety, the Division of Occupational Safety, or the permitting authority to shut down a trench site pursuant to 520 CMR 14.05(5) may make an appeal for a hearing to the entity responsible for the immediate shutdown. The site shall remain shut down during the appeal period. Such appeal shall be made in writing within ten calendar days. Upon receipt of the appeal, a hearing shall be scheduled promptly. All hearings under 520 CMR 14.05(5) shall be held in accordance with M.G.L. c. 30A and 801 CMR 1.02. Any person aggrieved by a decision after hearing may appeal to the Superior Court in accordance with M.G.L. c. 30A, § 14. (8) Serious Injury/Fatality; Notification; Investigation. (a) Notification. An excavator shall report all serious injuries or fatalities which occur at the location of a trench to the State Police within one hour from the time the serious injury occurred. (b) Investigation. In the event that a serious injury or fatality occurs, the trench site shall be immediately secured. The site surrounding the trench shall not be disturbed, cleaned, or altered in any way except by a public authority or as necessary for the preservation of life and property or the removal of the injured person(s) until receiving express authorization from an inspector of the Department of Public Safety.