Massachusetts § 5O - Notices of violation and orders; hearing; civil penalties

§ 5O. Notices of violation and orders; hearing; civil penalties

Section 5O. The department may issue notices of violation and orders as are necessary to enforce the provisions of sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued under such sections. Such orders may include, but not be limited to, orders modifying, suspending or revoking licenses or registrations and orders requiring persons to cease any activity that is in violation of the provisions of said sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued by the department under said sections. Such orders may include, but not be limited to, orders modifying, suspending, revoking licenses or registrations and orders requiring persons to cease any activity that is in violation of the provisions of said sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued under said sections. Orders shall be issued after notice and an opportunity for a hearing except where public health, safety or the environment would be threatened by delay in the issuance of an order; in such circumstance, an opportunity for hearing shall be provided promptly after the issuance of such order.

If the department finds, after a notice has been issued and an opportunity for a hearing has been provided, that a person is not in compliance with an order issued pursuant to this section, or with any provision of section five N, five P or five Q or any such sections rule, regulation, license or registration adopted or issued under, the department may assess civil penalties in an amount not exceeding one hundred thousand dollars per violation. Such civil penalty may be assessed whether or not the violation was willful.

In determining the amount of the civil penalty, the department shall consider the willfulness of the violation, the actual and potential danger or injury to the public health or the environment; the actual and potential cost of such damage or injury; the actual or potential danger or injury to the public health or the environment; the actual and potential cost of such damage or injury; the actual or potential cost to the commonwealth of enforcing the provisions of this chapter; whether the person being assessed the civil penalty did everything reasonable to prevent the failure to comply from occurring, to come into compliance promptly, and to remedy and mitigate whatever harm might have been done as a result of the failure to comply; whether the person being assessed the civil penalty has previously failed to comply with any other order issued pursuant to said sections five N to five Q, inclusive, or any rule or regulation adopted by the department thereunder; making compliance less costly than noncompliance; deterring future noncompliance; the financial condition of the person being assessed the civil penalty; and the public interest.

The supreme judicial court or superior court, upon application of the department, or upon application of any party interested, with the approval of the department, may enforce the provisions of said sections five N to five Q, inclusive, and any rule or regulation, license, registration or order adopted or issued thereunder by the department, when said court determines that any person has engaged in, or is about to engage in any act or practice which constitutes or will constitute a violation of such provision, rule, regulation, license, registration or order, and may restrain such act or practice or the use or occupation of premises or such parts thereof as the department may specify until such provision, rule, regulation, license, registration or order have been complied with.