310 CMR, § 80.50 - Enforcement and Appeals

(1) General. Any failure to comply with M.G.L. c. 21O, 310 CMR 80.00, or the terms and conditions of any order, permit, authorization, determination, certification, prohibition or approval issued under 310 CMR 80.00 shall constitute a violation of M.G.L. c. 21O and 310 CMR 80.00. Nothing in 310 CMR 80.00, or in any order issued pursuant thereto, shall be construed to limit any right of the Department to take enforcement action pursuant to any other authority.

(2) Action by the Department. Whenever the Department has cause to believe that a violation has occurred, it may:

(a) Order the Owner and Operator of the UST system or facility, or any other person responsible for the violation, to cease immediately or at a specified date, all illegal activity and to comply with the provisions of M.G.L. c. 21O, 310 CMR 80.00, or any permit, authorization, determination, registration, certification or approval issued thereunder. Any person who or which is the subject of said order has the right to request an adjudicatory hearing in accordance with the terms of 310 CMR 80.50(5);

(b) Issue an order to the Owner and Operator of the UST system or facility, in accordance with 310 CMR 80.48. Any person who or which is the subject of said order has the right to request an adjudicatory hearing in accordance with the terms of 310 CMR 80.50(5);

(c) Issue a notice of noncompliance pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty, which is not subject to the right to request an adjudicatory hearing in accordance with the terms of 310 CMR 5.00: Administrative Penalty;

(d) Issue a penalty assessment notice pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty, which is subject to the right to request an adjudicatory hearing in accordance with the terms of 310 CMR 5.00: Administrative Penalty; or

(e) Take such other action provided by 310 CMR 80.00 or other applicable statutory or regulatory authority as the Department deems appropriate.

(3) Service of Administrative Orders. Service of an order issued in accordance with M.G.L. c. 21O or 310 CMR 80.00 by the Department shall be according to one of the following procedures 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 is complete when it is delivered in-hand by an employee or agent of the Department to the person to be served or to any officer, employee, or agent of that person. The fact and date of service is established by the return receipt or affidavit of the person making service.

(b) 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 delivery to the person or to any officer, employee, or agent of that person. The fact and date of service is established by the returned receipt.

(c) The Department may make service of an order in an alternative manner, including any form of electronic mail, facsimile or other electronic communications, national overnight carrier, regular mail to the last known address, publication in a newspaper of general circulation, or other method of notification that is reasonably calculated to give notice of the order to the person to be served. The Department may use such alternative or substitute methods of service when the person to be served has declined to accept receipt by the other methods of service specified in 310 CMR 80.50(3)(a) and (b). The fact of service in such cases is established by such records as may be available. The date of service shall be the date on which the Department initiates electronic transmission, the date of publication, one day after the date of overnight mailing or three days after the date of regular mailing.

(4) Service of Other Enforcement Documents. Service of Notices of Noncompliance, Penalty Assessment Notices and any other enforcement document shall be in accordance with M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty.

(5) Right to Adjudicatory Hearing.

(a) The following parties shall have the right to an adjudicatory hearing:

1. A person who is the subject of an order issued pursuant to 310 CMR 80.50(2)(a) or (b) has the right to request a hearing on the terms and issuance of such order.

2. An individual whose application to be certified as a third-party inspector is denied by the Department has the right to request a hearing on such denial in accordance with 310 CMR 80.49(4)(a)2.c. and d.

3. A third-party inspector whose certification is denied, suspended or revoked by the Department has the right to request a hearing on such denial, suspension or revocation in accordance with 310 CMR 80.49(10)..

(b) Any right to an adjudicatory hearing concerning assessment of a civil administrative penalty and the procedures for requesting such hearing shall be governed by the provisions of 310 CMR 5.00: Administrative Penalty.

(6) Waiver of Right to Adjudicatory Hearing.

(a) Any person who has the right to an adjudicatory hearing in accordance with 310 CMR 80.50(2), shall be deemed to have waived their right to an adjudicatory hearing, unless the person delivers to the Department a request for an adjudicatory hearing in writing within 21 days of the date of issuance in accordance with 310 CMR 80.50(6)(c) that complies with the requirements for content of filings set forth in 310 CMR 1.01(4): Filings and that is filed in accordance with the methods and procedures set forth in 310 CMR 1.01(3)(a): Timely Filing.

(b) The request for an adjudicatory hearing shall be submitted to the Department in the manner specified in the appealable document.

(c) The date of issuance of an order, denial, suspension or revocation shall be:

1. The date on which the Department hand delivers the document;

2. The date of receipt if the Department sends the document by certified mail;

3. Three days after the Department initiates transmission of the document by other methods of notification specified in 310 CMR 80.50(3); or

4. Three days after the Department publishes the document in a newspaper of general circulation.

Notes

310 CMR, § 80.50

Adopted by Mass Register Issue S1277, eff. 1/2/2015. Amended by Mass Register Issue 1453, eff. 10/1/2021.