301 CMR 11.04 - Fail-Safe Review
(1) Petition or Secretary's Initiative. Upon written petition by one or more Agencies or ten or more Persons, or at the initiative of the Secretary, the Secretary may require a Proponent to file an ENF or undergo other MEPA review for a proposed program, regulations, policy, or other Project that does not meet or exceed any review thresholds unless all Agency Actions for the Project have been taken, provided that the Secretary finds in the decision on the petition or initiative that:
(a) the Project is subject to MEPA jurisdiction;
(b) the Project has the potential to cause Damage to the Environment and the potential Damage to the Environment either:
1. could not reasonably have been foreseen prior to or when 301 CMR 11.00 was promulgated; or
2. would be caused by a circumstance or combination of circumstances that individually would not ordinarily cause Damage to the Environment; and
(c) requiring the filing of an ENF and other compliance with MEPA and 301 CMR 11.00:
1. is essential to avoid or minimize Damage to the Environment; and
2. will not result in an undue hardship for the Proponent.
A written petition for fail-safe review shall state with specificity the Project-related facts that the petitioners believe support the Secretary's required findings.
(2) Notice and Effect of Petition or Secretary's Initiative. Within ten Days of receiving of a petition, or immediately when the Secretary initiates fail-safe review, the Secretary shall notify the Proponent and any Participating Agency of the petition or initiative and may request further information from the Proponent. Following such notice, a Participating Agency shall not take Agency Action on the Project unless and until the Secretary has issued a decision that the Project does not require the filing of an ENF or, if the Secretary requires an ENF, the Secretary has determined that an EIR is not required or the Secretary has determined that the single or final EIR is adequate and 60 Days have elapsed following the publication of the notice of the availability of the single or final EIR in the Environmental Monitor in accordance with 301 CMR 11.15(2).
(3) Secretary's Decision. The Secretary shall issue a written decision stating whether the Proponent shall file an ENF or undergo other MEPA review within 20 Days of the latest of receiving a petition for fail-safe review, notifying the Proponent of the petition or initiative, or receiving any requested further information. The Secretary shall send notice of any fail-safe review decision to the Proponent and any Participating Agency and shall publish notice of the decision in the next Environmental Monitor in accordance with 301 CMR 11.15(2). The Secretary's failure to issue a decision within the 20 Day period shall have the effect of a determination that no ENF or any other MEPA review is required.
(4) Effect of Secretary's Decision. The Secretary's decision to require fail-safe review shall not in itself invalidate any Agency Action previously taken by an Agency or any conditions thereof.
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