Thoughts on DEP “Reg Reform”

The Massachusetts Department of Environmental Protection released its Final Action Plan for Regulatory Reform at Mass DEP on March 5, 2012. DEP should be congratulated for its leadership in state government with regard to simplifying its regulations.

That said, DEP has “over sold” or “over advertised” its effort.  I was a member of the Regulatory Reform Working Group convened by DEP at the outset of its process.  The Commissioner established, and the process rigorously followed the standard that the Working Group was to focus solely on initiatives which DEP could accomplish by July 1, 2012.  In addition, the direction of the Working Group project solely was to identify DEP practices, policies, regulations, or procedures which could be altered in a way to reduce the DEP workload and yet continue to accomplish the environmental protection goal of the relevant law.  The effort was driven by recognizing that its budget has shrunk over the past several years and that it is time for DEP to “live within its means.”  Again, I congratulate DEP on taking this initiative and to see it through to its March 5 Final Action Plan.

On a separate – but somewhat parallel track – the Legislature has focused on the need for “regulatory reform” to reduce any unnecessary burdens on business, in particular small business.  In Sections 65 – 71 of Chapter 240 of the Acts of 2010 the Legislature amended Massachusetts General Laws Chapter 30A to require state agencies to identify and reduce (to the extent possible) burdens on business and small business arising from regulations.  As part of this mandated effort each agency is required under M.G.L. c. 30A, § 5A to review its regulations which have been in existence for at least 12 years to “minimize economic impact of the rule or regulation on small businesses.”  As part of that process each state agency is required to review the “continuing need for the rule or regulation”; “the nature of complaints or comments received”; “the extent to which the rule or regulation overlaps, duplicates or conflicts with other regulations”; “the length of time since the rule or regulation has been enacted”; and “the degree to which technology, economic conditions or other factors have changed in the subject areas affected by the rule or regulation.”  This is a far more expansive review of regulations than was undertaken by DEP to produce its Final Plan.  The Final Plan was focused only on internal impacts with an orientation to alter regulations if it would reduce the burden on DEP staff and resources.  The mandated inquiry under the amended Chapter 30A requires an external review of the impacts on the regulated community.  They are two different scopes with, frankly, not much in common.

I raise this point because, troublingly, the Massachusetts DEP Final Action Plan recites that the Plan “addresses the agency’s obligations under” M.G.L. c. 30A § 5A (described above).  This statement is not accurate and disappointing. Perhaps in the excitement of completing the project DEP lost focus for a moment. Let’s hope that they can be reminded to refocus and undertake the examination that the Legislature required by amending chapter 30A.