MassDEP staff explain Notices of Noncompliance practice after contractors ask for lower‑level advisory option

Massachusetts Department of Environmental Protection staff said the agency currently treats Notices of Noncompliance (NONs) as a routine enforcement tool, and department officials will ask the Office of Enforcement whether a distinct, lower‑level official communication could be created. An attendee raised the possibility of a formal advisory or regulatory communication letter that would provide official input without carrying the perception of a noncompliance.

The question came during a bureau coffee‑hour session hosted by MassDEP staff. A MassDEP staff member who led the discussion said NONs are considered "lower level enforcement" but added that "NONs typically are not retracted," and stressed that open communication with regional staff is the best way to prevent issuance. The staff member said the typical sequence is that a NON invites the responsible party to the enforcement table and may later be incorporated into a higher‑level action such as an Administrative Consent Order (ACO) if unresolved.

Why it matters: consulting firms and property owners told the department that receiving a NON can create substantial business and reputational consequences even when the underlying issue may be disputed. Consultants said they would welcome a documented, official pathway that allows the agency to flag potential regulatory issues without immediately placing a party on an enforcement record.

MassDEP audits and enforcement coordinator Brian Roden described the NON as the department's mechanism for signaling that site work "does not meet the regulation." Roden said staff sometimes reach out for additional information before issuing a NON, and he offered to follow up internally to determine if other programs use different approaches.

An attendee, Elliot Steinberg of Halley & Aldridge, urged that a phone call from enforcement staff to request clarification should precede a formal NON. Steinberg said that approach had resolved questions in his experience and could reduce unnecessary formal notices.

Department response and next steps: MassDEP staff said they will "circle back with the Office of Enforcement" to explore whether a formal advisory option or clearer interim practice can be adopted and will encourage regional auditors to contact responsible parties before issuing a NON when information is missing. The staff member emphasized the agency's interest in using its enforcement tools judiciously and offered the ACO "statement of facts" and the ACO disposition language as places where parties can negotiate or clarify factual claims when matters progress to higher‑level enforcement.

The department did not announce a change in policy during the meeting; instead staff committed to follow up with the Office of Enforcement and to report back to the stakeholder who raised the question.

Ending: MassDEP staff asked stakeholders to continue raising concerns and to keep lines of communication open with regional staff; the agency said it would provide a clearer statement after internal follow‑up with the Office of Enforcement.