The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding

by Foley Hoag LLP - Environmental Law
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In April 2011, MassDEP launched a regulatory reform initiative.  Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package.  While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012. Highlights include:
  • Elimination of MassDEP sewer connection permits. The existing program represents needless duplication of local permitting authority.
  • Accelerated reviews under Chapter 91. Improved coordination between MEPA review and MassDEP action under Chapter 91 has been long-overdue.
  • Streamlining review of renewable energy projects under the Wetlands Protection Act. (While MassDEP also has included some reforms regarding regulation of work in the buffer zone, this was the one area of significant disappointment, falling far short of the broad general permit for buffer zone work that some of us had hoped would result.)
  • Improvements to solid waste regulations, streamlining some reviews, and use of 3rd party certifications for compliance determinations.
  • Elimination of the numerical ranking system at Chapter 21E sites. This system was archaic and no longer served any practical purpose. Since this is a blog, I’m going to shamelessly take credit for this one. MassDEP had proposed streamlining the NRS; once the door was open, I suggested eliminating it completely. Kudos to MassDEP for being open-minded enough to consider the more radical suggestion.
  • Consolidated permits under Chapter 91, the Wetlands Protection Act, and Water Quality Certification regulations for dredging work. Simplifying these multiple requirements was also a long-overdue change.
  • Establishment of a program for 3rd party review of innovative septic system technologies.
  • Revisions to the Activity and Use regulations under Chapter 21E to allow attainment of “permanent solutions” for sites with certain kinds of active treatment systems.
MassDEP still has to actually make these changes happen. While some of them don’t need regulatory changes, most do. Here’s hoping that MassDEP’s courage to implement these changes doesn’t fail in the coming months. There is certainly much more that MassDEP could do, but it’s time to give credit where credit is due. Nicely done.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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