Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
SECTION 1. Chapter 21A of the General Laws is hereby amended by adding the following section:-
Section 16. As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:-
"Department", the department of environmental quality engineering.
"Person", any agency or political subdivision of the commonwealth, any state, public or private corporation or authority, individual, trust firm, joint stock company, partnership, association or other entity or any group thereof or any officer, employee or agent thereof.
The department may assess a civil administrative penalty on a person who fails to comply with any provision of any regulation, order, license or approval issued or adopted by the department, or of any law which the department has the authority or responsibility to enforce; provided, however, that such noncompliance occurred after the department had given such person written notice of such noncompliance, and after reasonable time, as determined by the department and stated in said notice, had elapsed for coming into compliance; and provided, further, that the department may assess such penalty without providing such written notice if such failure to comply: (1) was part of a pattern of noncompliance and not an isolated instance, or (2) was willful and not the result of error, or (3) resulted in significant impact on public health, safety, welfare or the environment, or (4) consisted of failure to promptly report to the department (a) any unauthorized disposal of hazardous waste, as is defined by chapter twenty-one C, or (b) any unauthorized release or discharge of hazardous material into the environment, as are defined by chapter twenty-one E. Any such penalty shall be an alternative to any other civil penalty that may be prescribed by law. For the purpose of determining whether such noncompliance was part of a pattern of noncompliance and not an isolated instance, the department shall consider, but not be limited to, the following: whether the department had previously notified the person of such noncompliance on two occasions during the previous four-year period or of any noncompliance with the same provision of a law, regulation, order, license or approval as the current noncompliance during the previous five-year period; whether the current and previous noncompliances occurred at the same facility; and whether the current and previous noncompliances, considered together, indicate a potential threat to public health, safety, welfare or the environment or an interference with the department's ability to efficiently and effectively administer its programs or to enforce any regulation, order, license or approval it has issued or adopted or any law which it has authority or responsibility to enforce. If a person who has received a notice of noncompliance fails to come into compliance within the time period stated in such notice, the civil administrative penalty may be assessed by the department upon such person from the date of receipt of such notice.
Whenever the department seeks to assess a civil administrative penalty on any person, the department shall cause to be served upon such person, either by service, in hand, or by certified mail, return receipt requested, a written notice of its intent to assess a civil administrative penalty which shall include a concise statement of the alleged act or omission for which such civil administrative penalty is sought to be assessed, each law, regulation, order, license or approval which has not been complied with as a result of such alleged act or omission, the amount which the department seeks to assess as a civil administrative penalty for each such alleged act or omission, a statement of such person's right to an adjudicatory hearing on the proposed assessment, the requirements such person must comply with to avoid being deemed to have waived the right to an adjudicatory hearing and the manner of payment thereof if such person elects to pay the penalty and waive an adjudicatory hearing. After written notice of noncompliance or intent to assess a civil administrative penalty has been given, each such day thereafter during which such noncompliance occurs or continues shall constitute a separate offense and shall be subject to a separate civil administrative penalty if reasonable efforts have not been made to promptly come into compliance.
Whenever the department seeks to assess a civil administrative penalty on any person, such person shall have the right to an adjudicatory hearing under chapter thirty A whose provisions shall apply except when they are inconsistent with the provisions of this section.
Such person shall be deemed to have waived such right to an adjudicatory hearing unless, within twenty-one days of the date of the department's notice that it seeks to assess a civil administrative penalty, such person files with the department a written statement denying the occurrence of any of the acts or omissions alleged by the department in such notice, or asserting that the money amount of the proposed civil administrative penalty is excessive. In any adjudicatory hearing authorized pursuant to chapter thirty A, the department shall, by a preponderance of the evidence, prove the occurrence of each act or omission alleged by the department.
If a person waives his right to an adjudicatory hearing, the proposed civil administrative penalty shall be final immediately upon such waiver.
If a civil administrative penalty is assessed at the conclusion of an adjudicatory hearing, said civil administrative penalty shall be final upon the expiration of thirty days if no action for judicial review of such decision is commenced pursuant to chapter thirty A.
Any person who institutes proceedings for judicial review of the final assessment of a civil administrative penalty shall place the full amount of the final assessment in an interest-bearing escrow account in the custody of the clerk/magistrate of the reviewing court. The establishment of such an interest-bearing escrow account shall be a condition precedent to the jurisdiction of the reviewing court unless the party seeking judicial review demonstrates in a preliminary hearing held within twenty days of the filing of the complaint either the presence of a substantial question for review by the court or an inability to pay. Upon such a demonstration, the court may grant an extension or waiver of the interest-bearing escrow account or may require, in lieu of such interest-bearing escrow account, the posting of a bond payable directly to the commonwealth in the amount of one hundred and twenty-five per cent of the assessed penalty. If, after judicial review, in a case where the requirement for an escrow account has been waived, and in cases where a bond has been posted in lieu of such requirement, the court affirms, in whole or in part, the assessment of a civil administrative penalty the department shall be paid the amount thereof together with interest at the rate set forth in section six C of chapter two hundred and thirty-one. If, after such review in a case where an interest-bearing escrow account has been established, the court affirms the assessment of such penalty, in whole or in part, the department shall be paid the amount thereof together with the accumulated interest thereon in such interest-bearing escrow account. If the court sets aside the assessment of a civil administrative penalty in a case where the amount of such penalty has been deposited in an interest-bearing escrow account, the person on whom the civil administrative penalty was assessed shall be repaid the amount so set aside, together with the accumulated interest thereon.
Each person who fails to pay a civil administrative penalty on time, and each person who issues a bond pursuant to this section and who fails to pay to the commonwealth on time the amount required hereunder, shall be liable to the commonwealth for up to three times the amount of the civil administrative penalty, together with costs, plus interest from the time the civil administrative penalty became final and attorneys' fees, including all costs and attorneys' fees incurred directly in the collection thereof. The rate of interest shall be the rate set forth in section six C of chapter two hundred and thirty-one.
In determining the amount of each civil administrative penalty, the department shall include, but not be limited to, the following in its considerations: the actual and potential impact on public health, safety and welfare and the environment of the failure to comply; the actual and potential damages suffered, and actual or potential costs incurred, by the commonwealth, or by any other person; whether the person being assessed the civil administrative penalty took steps to prevent noncompliance, to promptly come into compliance and to remedy and mitigate whatever harm might have been done as a result of such noncompliance; whether the person being assessed the civil administrative penalty has previously failed to comply with any regulation, order, license or approval issued or adopted by the department, or any law which the department has the authority or responsibility to enforce; making compliance less costly than noncompliance; deterring future noncompliance; the financial condition of the person being assessed the civil administrative penalty; and the public interest.
No civil administrative penalty assessed hereunder shall be less than one hundred dollars. For each of the following failures to comply, the civil administrative penalty shall not exceed twenty-five thousand dollars; each release, discharge, or disposal of material into the environment without the approval of the department, or in a manner not approved by the department, whenever such release, discharge or disposal requires the approval of the department; engaging in any business or activity without a license or other authorization from the department, whenever engaging in such business or activity requires such license or authorization by the department; failure to promptly report to the department each unauthorized disposal of hazardous waste, as defined by chapter twenty-one C; and failure to promptly report to the department each unauthorized release or discharge of hazardous materials into the environment, as defined by chapter twenty-one E.
Any person who fails to comply with or otherwise violates the provisions of chapter one hundred and eleven F enforceable by the department shall be liable for a civil administrative penalty not to exceed two hundred and fifty dollars per day for each day that such violation continues and the department shall follow the procedures set forth therein in assessing such penalty. For any other failure to comply with any regulation, order, license or approval issued or adopted by the department, or any law which the department has authority or responsibility to enforce, the civil administrative penalty for each failure to comply shall not exceed one thousand dollars.
SECTION 2. No civil administrative penalty shall be assessed by the department pursuant to section sixteen of chapter twenty-one A of the General Laws, until the commissioner has promulgated regulations for assessing civil administrative penalties as required by chapter thirty A of the General Laws.
SECTION 3. By June thirtieth, nineteen hundred and eighty-six, the commissioner of the department shall promulgate, in compliance with chapter thirty A of the General Laws, regulations for assessing civil administrative penalties pursuant to section sixteen of chapter twenty-one A of the General Laws, inserted by section one of this act, for failure to comply with any provision of chapter twenty-one C of the General Laws, or any regulation, order, or license adopted or issued thereunder. Said commissioner shall submit any regulations promulgated under the provisions of this section to the joint legislative committee on natural resources and agriculture for its review within sixty days prior to the effective date of said regulations.
SECTION 4. There is hereby established within the department an administrative penalties advisory committee, hereinafter called the committee, to provide advice and consultation to the department concerning civil administrative penalties. Said committee shall review the development and implementation of regulations for civil administrative penalties, and shall make recommendations for regulations establishing the manner in which the amount of civil administrative penalties shall be assessed. The committee shall consist of the attorney general or his designee and six members to be appointed by the governor, one of whom shall be a representative of the Massachusetts Municipal Association, one of whom shall be a representative of the Massachusetts Health Officers Association, one of whom shall be a representative of the Associated Industries of Massachusetts, one of whom shall be a representative of the Small Business Association of New England, one of whom shall be a representative of the Massachusetts Association of Conservation Commissions, and one of whom shall be a representative of a statewide organization for the promotion of protection of the environment. Members of the committee shall serve without compensation.