Massachusetts Department of Environmental Protection to Hold Listening Sessions under Executive Order 562

In April, we reported on Governor Baker’s issuance of Executive Order 562, a very broad Order that prohibits any Massachusetts agency from issuing new regulations for one year, unless certain conditions are met. In order to issue a rule, an agency is required to demonstrate a clear need for governmental intervention and that the costs of the regulation do not outweigh the benefits, that the regulation does not exceed federal requirements or duplicate local requirements, that there are no less restrictive or intrusive desirable alternatives, and that the regulation does not adversely affect Massachusetts’ citizens, customers, or competitive environment.

In addition, EO 562 requires all executive agencies to conduct a review of every existing regulation within their jurisdiction and sunset those regulations by March 31, 2016, unless the agencies find that the regulations are “mandated by law or essential to health, safety, environment, or welfare of the Commonwealth’s residents.”

In furtherance of this mandate, the Massachusetts Department of Environmental Protection (MassDEP) has been hard at work conducting an initial assessment of close to 100 of its regulations to determine whether, under the criteria set out in EO562, further action is needed. In its evaluation MassDEP included the following considerations:

• Purpose and/or necessity of the regulation;
• Whether the regulation was reviewed and/or amended during MassDEP’s most recent regulatory reform initiatives under the prior Patrick Administration;
• Year of the most recent review;
• Whether the regulation is required by state or federal law;
• Reporting requirements associated with the regulation; and
• Whether the regulations are more stringent than the federal government’s.

Based on this evaluation, MassDEP has just released its “Work Plan for Executive Order 562” and “Preliminary EO562 Proposal,” which lists 18 regulatory packages the agency is considering for potential amendments and 10 for potential rescission. The list includes:

1. Proposed regulatory amendments to promote agency efficiencies and streamlining of requirements (i.e., flexibility on the Waterways regulations for Designated Port Areas and Facilities of Public Accommodations, and exemptions and self-certification for Groundwater Discharge Permits, which are typically time-consuming in the review of applications and issuance of permits);
2. Proposed regulatory amendments based on state or federal law (i.e., amending the Lower Emissions Vehicle regulation to conform with California Air Resources Board standards, and amending Surface Water Quality Standards to comply with the federal bacteria standard for recreational coastal waters);
3. A proposed regulatory amendment that has been under development by MassDEP (i.e., promulgating a new standard for Land Subject to Coastal Storm Flowage under the Wetlands Protection Act); and
4. Proposed rescission of regulations that are outdated superseded or no longer funded.

MassDEP will be holding three Listening Sessions to inform the public of its regulatory evaluation efforts to date and gather input from a diverse group of stakeholders across the board, as well as from the public at large. The Listening Sessions will be held:

• Tuesday, September 29, 2015, from 4-6 p.m. - MassDEP's Central Regional Office, Suasco Conference Room, 8 New Bond Street, Worcester;
• Wednesday, September 30, 2015, from 4-6 p.m. - Springfield Central Library, 220 State Street, Springfield; and
• Thursday, October 1, 2015, from 4-6 p.m. - MassDEP's Boston Headquarters, Conference Rooms A, B & C, second floor, 1 Winter Street, Boston.

The Baker Administration has also set up an online portal for the public to provide input on which regulations are in need of re-evaluation and possible change, as well as feedback on how the evaluation process is being conducted.

MassDEP’s assessment is a resource-intensive undertaking that is occurring at a time when the agency’s workforce has been reduced by approximately 100 employees. Notwithstanding that MassDEP has considered close to 100 regulations in this review process, the Preliminary EO 562 Proposal appears to be limited in scope when compared to the sweeping mandate of EO 562. There is certainly a possibility that MassDEP will hear comments to this effect when the public weighs in during the Listening Sessions and public comment period, and the extent of the proposal may very well expand. Companies doing business in Massachusetts will undoubtedly be affected by the final list and should consider attending a Listening Session and/or submitting comments.