454 CMR 29.00 — Civil administrative penalties

454 CMR: DEPARTMENT OF LABOR STANDARDS 454 CMR 29.00:CIVIL ADMINISTRATIVE PENALTIES Section

454 CMR 29.00 Civil administrative penalties

29.01 Purpose and Scope

29.01: Purpose and Scope

29.02 Definitions

29.02: Definitions

29.03 Issuance of Written Warnings

29.03: Issuance of Written Warnings

29.04 Civil Citations

29.04: Civil Citations

29.05 Temporary Restraining Orders and Preliminary and Permanent Injunctions for Certain Asbestos

29.05: Temporary Restraining Orders and Preliminary and Permanent Injunctions for Certain Asbestos and Lead Violations

29.06 Service of Written Warnings and Civil Citations

29.06: Service of Written Warnings and Civil Citations

29.07 Severability

29.07: Severability

29.01 Purpose and Scope

29.01: Purpose and Scope (1) Purpose. 454 CMR 29.00 is intended to: (a) Promote the health, safety, and welfare of workers, businesses, and the general public by deterring noncompliance with the laws, regulations, and related requirements to which 454 CMR 29.00 applies. (b) Ensure that the Department assesses civil administrative penalties lawfully, fairly, and consistently. (2) Scope. 454 CMR 29.00 applies to M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; and M.G.L. c. 149, §§ 6, 6½ and 6A through 6F½.

29.02 Definitions

29.02: Definitions As used throughout 454 CMR 29.00, the following terms shall have the following meanings, unless the context clearly indicates otherwise: Civil Citation. A citation issued by the Director or his or her representative pursuant to 454 CMR 29.00 for a violation or violations of a law or regulation enforced by the Department, as set forth at 454 CMR 29.01(2). Such citation shall identify each violation upon which it is based and may include an Order that the infraction be rectified or a civil penalty imposed or both. Civil Penalty. A monetary penalty, payable to the Commonwealth of Massachusetts, ordered as part of a Civil Citation issued by the Director or his or her representative pursuant to 454 CMR 29.00 for a violation or violations of a law or regulation enforced by the Department, as specified in 454 CMR 29.01(2). Department. The Department of Labor Standards of the Massachusetts Executive Office of Labor and Workforce Development. Director. The Director of the Massachusetts Department of Labor Standards who has been authorized to administer and enforce 454 CMR 29.00 by the Secretary of the Executive Office of Labor and Workforce Development. License. Any document issued by the Department of Labor Standards pursuant to M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½, that is nominally referred to as a license, certification, or registration and which authorizes the holder to exercise a certain privilege that would otherwise be prohibited without such license, certification, or registration. Order. Any order issued by the Director or his or her representative under the provisions of 454 CMR 29.00 including, but not limited to, an order for the cessation of all relevant activities of the person, firm, corporation, or other entity for failure to comply with the requirements of a Civil Citation. 7/23/21454 CMR - 449

454 CMR: DEPARTMENT OF LABOR STANDARDS

29.02 continued

29.02: continued Specific Intent. The mental purpose, aim, or design to accomplish a specific act prohibited by a law or regulation enforced by the Department, as specified in 454 CMR 29.01(2). Violation. Any act or failure to act that results in one or more of the following: (a) engaging in any business or other activity without a license, certification, registration, or approval whenever such a license, certification, registration, or approval is required by the applicable regulation or statute. (b) engaging in any activity prohibited by, or not in compliance with, any requirement of an applicable regulation or statute. (c) not fully doing, or not doing in a timely fashion, anything required by any applicable regulation or statute. Written Warning. A warning issued in writing by the Director or his or her representative pursuant to 454 CMR 29.00 for a violation or violations of a law or regulation enforced by the Department, as set forth at 454 CMR 29.01(2).

29.03 Issuance of Written Warnings

29.03: Issuance of Written Warnings The Director, at his or her discretion, may issue a Written Warning for Violations of requirements of regulations and statutes to which 454 CMR 29.00 applies. Written Warnings shall identify the specific requirement(s) of the applicable regulation or statute that has been violated and shall serve as official, legal notice to the person, firm, corporation, or other entity of the occurrence or existence of the Violation(s). Said Written Warning may contain an Order to correct the Violation and specify a period of time for the correction of said Violation. Failure to correct the Violation within the period of time specified may result in the issuance of a Civil Citation or other enforcement action.

29.04 Civil Citations

29.04: Civil Citations (1) General. In addition to the penalties permitted by M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; and M.G.L. c. 149, §§ 6, 6½ and 6A through 6F½, the Director or his or her representative may issue a Civil Citation for each Violation. Said Civil Citation may include an Order to correct the deficiency or infraction that resulted in the issuance of the Civil Citation, a Civil Penalty, or both. Said Civil Citation shall include: (a) A statement of the alleged act or omission for which the Civil Citation is issued; (b) Identification of the law, regulation or order that has not been complied with as a result of such alleged act or omission; (c) If a Civil Penalty is issued, the amount of the Civil Penalty for each alleged act or omission for which the Civil Penalty is assessed; (d) A statement that the person to whom the Civil Citation is issued has a right to appeal the Civil Citation through an adjudicatory hearing; (e) A statement that sets forth the actions that must be taken by the person to whom the Civil Citation is issued in order for said person to avoid being deemed to have waived his or her right to an adjudicatory hearing; and (f) If a Civil Penalty is assessed, a statement of how and when the Civil Penalty must be paid. (2) Maximum Amounts of Civil Penalties. The maximum amounts of Civil Penalties that may be assessed under 454 CMR 29.00 are: (a) A monetary penalty of not more than $1,000 may be issued for each Violation if: 1.the person, firm, corporation or other entity has not previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or has not previously been issued a Civil Citation pursuant to 454 CMR 29.00; and 2. the Director has determined that the person, firm, corporation or other entity lacked Specific Intent to violate M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or 454 CMR 29.00. 7/23/21454 CMR - 450

454 CMR: DEPARTMENT OF LABOR STANDARDS

29.04 continued

29.04: continued (b) A monetary penalty of not more than $2,500 may be issued for each Violation if: 1.the person, firm, corporation or other entity has not previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 454 CMR 29.00; and 2.the Director has determined that the person, firm, corporation, or other entity possessed a Specific Intent. (c) A monetary penalty of not more than $5,000 may be issued for each Violation if the person, firm, corporation or other entity has previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 454 CMR 29.00. (d) A monetary penalty may be issued pursuant to M.G.L. c. 149 § 6 for violations of M.G.L. c. 149, § 6½, and 454 CMR 25.00. (3)Determination of the Amount of a Civil Penalty. In determining the amount of each CivilPenalty, the Department shall consider various factors including, but not limited to, the following: (a)The actual and potential impact on public health, safety and welfare, and the environment of the failure to comply; (b) Whether the person, firm, corporation, or other entity being assessed the Civil 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; (c) Whether the person, firm, corporation, or other entity being assessed the Civil 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 authority or responsibility to enforce; (d) The deterrence of future noncompliance by the person, firm, corporation, or other entity, or by other such persons, firms, corporations or entities; (e) The financial condition of the person, firm, corporation, or other entity being assessed the civil penalty; and (f) The public interest. (4) Payment of a Civil Penalty. Payment of a Civil Penalty shall be made by certified check, cashier's check, money order, or credit card payable to the Commonwealth of Massachusetts. No other form of payment shall be accepted. Payment of Civil Penalties shall be made within 21 calendar days of the issuance of a Civil Citation, or if the Civil Citation is appealed, within 21 calendar days of settlement or final administrative or judicial adjudication of the appeal, whichever is later. (5) Consequence(s) of Failure to Comply with the Requirements of a Civil Citation. (a) If a person, firm, corporation, or other entity to whom a Civil Citation is issued fails to pay a Civil Penalty or otherwise fails to comply with the requirements set forth in a Civil Citation, the Department may order the cessation of all relevant activities of the person, firm, corporation, or other entity. Said Order shall be effective immediately upon service. (b) If a person, firm, corporation, or other entity to whom an Order has been issued pursuant to 454 CMR 29.04(5)(a) is also the holder of a License issued by the Department pursuant to M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½, the Director shall propose the suspension or revocation of the License at the same time the Order is issued and shall schedule an administrative hearing on said proposed suspension or revocation, within ten days after such Order is issued. Said administrative hearing shall be held in accordance with the requirements of M.G.L. c. 30A, §§ 8 through 13, and 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. Any License suspension or revocation shall also apply to all affiliates of the person, firm, corporation, or other entity, as well as to any successor company or corporation that the Director, upon investigation, determines not to have true independent existence apart from that of the violating person, firm, corporation, or other entity. (c) No officer of any corporation, which has failed to pay a Civil Penalty issued pursuant to 454 CMR 29.04, shall incorporate or serve as an officer of any corporation which did not have a legal existence as of the date that the penalty became due and payable to the Commonwealth. 7/23/21454 CMR - 451

454 CMR: DEPARTMENT OF LABOR STANDARDS

29.04 continued

29.04: continued (6) Appeals of Civil Citations, Orders and Penalties. Any person, firm, corporation or other entity aggrieved by a Civil Citation, Order, or Penalty issued pursuant 454 CMR 29.04 may request that an administrative hearing be held on the Civil Citation or Order by submitting a written request to the Director or his or her representative within 15 business days after the receipt of the Civil Citation or Order. All administrative hearings shall be held in accordance with the requirements of M.G.L. c. 30A, and 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. Any person, firm, corporation or other entity aggrieved of the decision of such an administrative hearing may appeal said decision pursuant to the provisions of M.G.L. c. 30A, § 14. (7) Conditional Licenses, Consent Agreements, and Settlement Agreements. The Director may issue licenses to any person, firm, corporation or other entity, subject to conditions specified therein, or enter into consent agreements or settlement agreements with the holder of the license.

29.05 Temporary Restraining Orders and Preliminary and Permanent Injunctions for Asbestos and Lead

29.05: Temporary Restraining Orders and Preliminary and Permanent Injunctions for Asbestos and Lead Violations (1) Initiation. Whenever the Director has reason to believe that a person, firm, corporation, or other entity is engaging in, or is about to engage in, a Violation of M.G.L. c. 111, § 197 or 197B; or M.G.L. c. 149, §§ 6A through 6E, he or she may bring an action in the name of the Commonwealth against such person, firm, corporation, or other entity to restrain the Violation by temporary restraining order or preliminary or permanent injunction. The action may be brought in the superior court of the county in which such person, firm, corporation, or other entity resides or has as his or her principal place of business, or the action may be brought in the superior court of Suffolk County with the consent of the parties or if the person, firm, corporation, or other entity has no place of business within the Commonwealth. If more than one person, firm, corporation, or other entity is joined as a defendant, the action may be brought in the superior court of the county where any one of the defendants reside or has his or her principal place of business, or in Suffolk County. (2) Penalty for Violation of an Injunction. Any person, firm, corporation, or other entity that violates an injunction issued pursuant to 454 CMR 29.05 shall be subject to a Civil Penalty of not more than $10,000 for each such Violation. Each day during which a person, firm, corporation, or other entity fails to correct the Violation that formed the basis for the injunction shall be considered a separate Violation. For the purposes of 454 CMR 29.05(2), the Department may petition the court retaining jurisdiction for recovery of this Civil Penalty.

29.06 Service of Written Warnings and Civil Citations

29.06: Service of Written Warnings and Civil Citations (1) Date of Issuance. (a)Service in Hand. Written Warnings and Civil Citations issued by the Department pursuant to 454 CMR 29.00 shall be deemed to have been issued on the date delivered, when served in hand to:

1. the person, firm, corporation, or other entity to whom the Written Warning or Civil Citation is addressed;
2. any officer, employee, or agent of the person, firm, corporation, or entity to whom the Written Warning or Civil Citation is addressed, who has been authorized by said person, firm, corporation, or entity, or by law, to accept service;
3. the last known address of said person, firm, corporation, or other entity; or 4.the last known address of any officer, employee, or agent of the person, firm, corporation, or entity to whom the Written Warning or Civil Citation is addressed, who has been authorized by said person, firm, corporation, or entity, or by law, to accept service. (b) Mail Delivery. If served by First Class or Certified Mail, the notice shall be deemed to be issued when postmarked by the U.S. Postal Service. (c) Electronic Delivery. If served by email, the notice shall be deemed to be issued on the date of the electronic delivery. 7/23/21454 CMR - 452

454 CMR: DEPARTMENT OF LABOR STANDARDS

29.06 continued

29.06: continued (2) Date Received. (a)Service in Hand. Written Warnings or Civil Citations issued by the Department pursuant to 454 CMR 29.00 shall be deemed to have been received on the date delivered, when served in hand to:

1. the person, firm, corporation, or other entity to whom the Written Warning or Civil Citation is addressed;
2. any officer, employee, or agent of the person, firm, corporation, or entity to whom the Written Warning or Civil Citation is addressed, who has been authorized by said person, firm, corporation, or entity, or by law, to accept service;
3. the last known address of said person, firm, corporation or other entity; or 4.the last known address of any officer, employee, or agent of the person, firm, corporation, or entity to whom the Written Warning or Civil Citation is addressed, who has been authorized by said person, firm, corporation, or entity, or by law, to accept service. (b) Mail Delivery. Written Warnings and Civil Citations posted as First Class Mail with the U.S. Postal Service shall be deemed to have been received no later than the third business day after mailing, or when returned by the U.S. Postal Service to the Department as unclaimed, unless the Director determines that the said Written Warning or Civil Citation was not claimed for reasons beyond the control of the person to whom the Written Warning or Civil Citation was sent. Written Warnings or Civil Citations posted with the U.S. Postal Service by Certified Mail shall be deemed to have been received when signed for by:
4. the person, firm, corporation, or other entity to whom the Written Warning or Civil Citation is addressed; or
5. any officer, employee, or agent of the person, firm corporation, or entity to whom the Written Warning or Civil Citation is addressed, who has been authorized by said person, firm, corporation, or entity, or by law, to accept service. (c) Electronic Delivery. Written Warnings or Civil Citations issued electronically by the Department pursuant to 454 CMR 29.00 shall be deemed to have been received on the date of electronic delivery.

29.07 Severability

29.07: Severability If any provision of 454 CMR 29.00 shall be held inconsistent with the laws of the Commonwealth, or held unconstitutional, either on its face, or as applied, the inconsistency or unconstitutionality shall not affect the remaining provisions. REGULATORY AUTHORITY 454 CMR 29.00: M.G.L. c. 111, § 197B; M.G.L. c. 140, § 46R; and M.G.L. c. 149, §§ 6, 6½ and 6F½. 7/23/21454 CMR - 453