Results of MassDEP’s Construction and Demolition Facility Request For Information

Last July and August, MassDEP sent a Request for Information (RFI) to all large construction and demolition (C&D) waste handling facilities regarding their compliance with the Minimum Performance Standard (MPS) guidance adopted by the Department in February 2020.  In very brief summary, the MPS guidance established a minimum 15% “Process Separation Rate” (PSR) for large C&D handling facilities (including both C&D processing and large C&D transfer stations).  In addition, a facility must remove waste banned materials “to the greatest extent possible” meaning that 15% removal is the floor and “the greatest extent possible” is the ceiling.  The MPS guidance is designed to provide a clear standard for C&D facilities to comply with the Department’s waste bans on disposal or transfer for disposal of the four C&D waste ban materials: wood; asphalt pavement, brick, and concrete (ABC); metal; and clean gypsum wallboard.  These materials have been banned since 2006[1] under the Department’s Solid Waste Management Facility Regulations at 310 CMR 19.017.

The Department’s RFI was intended, in part, to generate information on each individual facility’s compliance with the MPS guidance, and, for non-compliant facilities, their plans to come into compliance.  On January 29, Michael Elliott, MassDEP’s Asbestos and C&D Program Coordinator, presented the following slide compiling the C&D facilities’ responses for early CY2020 operations:

The results reveal a low level of compliance across the board.  Of the eighteen C&D processors who responded, only five met both MPS guidance performance criteria.  Two processing facilities met only the 15% PSR; three removed all four types of waste banned materials but did not meet the 15% minimum PSR; and eight other processing facilities were both below the 15% PSR and were not removing all four types of waste banned materials.  Of the eleven large C&D transfer stations who responded, only one met both performance criteria; one met the 15% PSR; and two were removing all four waste banned materials, but at less than the 15% PSR.

However, based upon Mr. Elliott’s presentation, it appears that many facilities are working towards compliance through the acquisition of new equipment and planned changes in operational practices.  C&D processing facilities will need to demonstrate that they are meeting both the 15% PSR and that they are removing all four categories of C&D waste ban materials “to the greatest extent possible.”  Like “Best Available Control Technology” or “BACT” requirements for sources of air emissions, the MPS guidance will eventually have an upward ratcheting effect on processing facility separation rates.  Once one C&D processing facility shows that separation at a rate greater than 15% can be achieved, others will need to follow suit or demonstrate why such a separation rate is not “possible.”  Large C&D transfer stations will likely comply by limiting acceptance to only C&D residuals from a compliant processing facility or by transferring all C&D to a compliant processing facility.  This too should drive recovery of waste banned materials from C&D.

It is important to note that the MPS guidance is really just another step in the evolution of the Department’s waste ban policy.  The concept of removal of waste banned items “to the greatest extent possible” is not new.  Under existing regulations, facilities are required to adopt and comply with Waste Ban Compliance Plans in accordance with 310 CMR 19.017(6).  As long as a facility remains in compliance with its approved plan, it is in compliance with the regulations.  Since at least 2014, the Department’s Guidance for Solid Waste Handling and Disposal Facilities on Compliance with MassDEP’s Waste Bans has required that a facility’s Waste Ban Compliance Plan “must demonstrate how the facility will, to the greatest extent possible, separate out from waste loads banned materials for subsequent reuse or recycling.

What is new in the MPS guidance is the bright line minimum of the 15% PSR performance criterion.  Under the previous Guidance, the Department took the position that “while MassDEP may take enforcement for any amount of waste ban materials that MassDEP observes in a shipment destined for disposal, a solid waste management facility is only required to take action in accordance with Section VIII of its approved Waste Ban Plan for unacceptable loads.”  A facility that identified such a load could remain in compliance with the waste ban regulation simply by following Section VIII of its Waste Ban Compliance Plan, which required the facility operator to communicate with the driver and the generator of the failed load and manage the failed load according to a hierarchy ranging from rejection of the load to disposal of that portion of the load that cannot be separated and reloaded, rejected, or recycled.  But nowhere was there a clear requirement to achieve a 15% minimum PSR.

For any questions about how these developments may affect your facility, contact the attorneys at Mackie Shea Durning, P.C.

[1] The ban on clean gypsum wallboard came into effect on July 1, 2011.

Major Developments in Environmental Justice in Massachusetts

The General Court, the Governor, and the Executive Office of Energy and Environmental Affairs (EOEEA) are proposing, and will likely adopt, significant changes to Massachusetts’ environmental justice (EJ) policy.

Most recently, on February 10, 2021, the EOEEA proposed a MEPA Interim Protocol for Environmental Justice Outreach that enhances and expands outreach to EJ populations during environmental review of new projects. On February 7, Governor Baker returned S. 9, a monumental climate bill titled “An Act creating a next-generation roadmap for Massachusetts climate policy,” to the General Court, with a letter suggesting amendments to strengthen the climate bill, including its EJ provisions. This was in response to the General Court’s passage of the bill on January 28 with a veto-proof margin after Governor Baker had “pocket vetoed” the same bill for various reasons at the end of the last legislative session. Sections 55 through 60 of the climate bill amend the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61-62H (MEPA), to incorporate new provisions to promote environmental justice in the Commonwealth.[1]

Governor Baker’s changes would include “climate change” within the definition of the “environmental burdens” that would need to be studied in the MEPA process. He also suggested broadening the applicability of the new EJ requirements to all projects subject to MEPA review, not simply those that are “not insignificant.”  This change would not only require compliance with the new EJ policies in filings of Environmental Impact Reports, but in all MEPA filings, including Environmental Notification Forms. Finally, Governor Baker proposes to require the MassDEP to incorporate review of cumulative impact analysis in its permitting processes, as follows:

The department of environmental protection shall evaluate and seek public comment on the incorporation of cumulative impact analysis in the assessment and identification of certain categories of permits and approvals. Not later than 18 months after the effective date of this act, the department of environmental protection shall propose regulations to include cumulative impact analysis for defined categories of air quality permits identified through the evaluation and public comment process.

Governor Baker did not suggest changes to any of the other core EJ provisions of the bill. In summary, if passed in its current form, the new bill will significantly alter the environmental review process for many projects located in or near an EJ population and will likely require significant new project mitigation to offset historical environmental burdens suffered by such populations.[2] At the core of the bill is the definition of “environmental justice principles,” which are:

principles that support protection from environmental pollution and the ability to live in and enjoy a clean and healthy environment, regardless of race, color, income, class, handicap, gender identity, sexual orientation, national origin, ethnicity or ancestry, religious belief or English language proficiency, which includes: (i) the meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies, including climate change policies; and (ii) the equitable distribution of energy and environmental benefits and environmental burdens.

The new bill will require an environmental impact report for any project that is likely to cause damage to the environment and that is located within a distance of one mile (or for projects that will impact air quality, five miles) of an EJ population. An EJ population means any neighborhood where: (i) the annual median household income is less than 65 per cent of the statewide annual median household income ($81,215 in 2019); (ii) minorities comprise 40 per cent or more of the population; (iii) 25 per cent or more of households lack English language proficiency; or (iv) minorities comprise 25 per cent or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150 per cent of the statewide annual median household income. There is also provision for ten residents of a portion of a neighborhood to petition the Secretary for EJ population status of such portion.

Such environmental impact reports must assess “any existing unfair or inequitable environmental burden and related public health consequences impacting the environmental justice population from any prior or current private, industrial, commercial, state, or municipal operation or project that has damaged the environment” based on guidelines established by the Secretary.

If the assessment indicates an environmental justice population is subject to an existing unfair or inequitable environmental burden or related health consequence the report shall identify any: (i) environmental and public health impact from the proposed project that would likely result in a disproportionate adverse effect on such population; and (ii) potential impact or consequence from the proposed project that would increase or reduce the effects of climate change on the environmental justice population.

The new legislation would also eliminate any current exclusions from the requirement to prepare an environmental impact report for projects affecting an EJ population: “No agency shall exempt from an environmental impact report any project that is located in a neighborhood that has an environmental justice population and is reasonably likely to cause damage to the environment, as defined in section 61.” The only exception would be for emergency actions.

The bill would also add significantly to the enhanced public participation requirements contained in the current EOEEA Environmental Justice Policy (the 2017 EJ Policy) by requiring the Secretary of the EOEEA to improve access for public participation by the EJ population during the MEPA review process. Enhanced public participation requires appropriate measures such as: (i) making public notices, environmental notification forms, environmental impact reports, and other key documents related to the secretary’s review and decisions of a project review available in English and any other language spoken by a significant number of the affected environmental justice population; (ii) providing translation services at public meetings for a significant portion of an affected environmental justice population that lacks English proficiency in the project’s designated geographic area; (iii) requiring public meetings be held in accessible locations that are near public transportation; (iv) providing appropriate information about the project review procedure for the proposed project; and (v) where feasible, establishing a local repository for project review documents, notices and decisions.

The new legislation would impose on the Secretary an additional standard for approval of an environmental impact report for a project, requiring the Secretary to “consider the environmental justice principles … in making any policy or determination, or taking any action relating to a project review … to reduce the potential for unfair or inequitable effects upon an environmental justice population.” Moreover, the law would require the Secretary to impose similar requirements on all EOEEA agencies: “To further the environmental justice principles the secretary shall direct its agencies, including the departments, divisions, boards and offices under the secretary’s control and authority, to consider the environmental justice principles in making any policy, determination or taking any other action related to a project review, or in undertaking any project … that is likely to affect environmental justice populations.”

***

Environmental justice is rooted in Article 97 of the Constitution of the Commonwealth of Massachusetts, which guarantees that:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The EOEEA laid the groundwork for this new legislation in 2002 when it formulated the agency-wide Environmental Justice Policy that made environmental justice “an integral consideration” to all EOEEA programs, “including but not limited to, the grant of financial resources, the promulgation, implementation and enforcement of laws, regulations, and policies, and the provision of access to both active and passive open space.” In 2014, Governor Patrick issued Executive Order No. 552, establishing a Director of Environmental Justice within the EOEEA and creating the Governor’s Environmental Justice Advisory Council, which the new legislation carries forward.

This new bill would mark the first time these EJ provisions have been implemented by legislative rather than executive action, a significant development that will ensure consistent implementation going forward regardless of what administration controls the executive branch. And, by amending the MEPA process, the new legislation ensures that EJ principles will be considered for all state agency actions, not just actions within the EOEEA.

***

Meanwhile, assuming that it becomes effective, the EOEEA’s proposed Interim Protocol will advance several of the climate bill’s EJ goals. (The EOEEA appears to be on a much shorter timeline for adopting the proposed Protocol than the Governor’s 180-day timeline for adopting amendments to the MEPA regulations incorporating the EJ changes.)

Under the Protocol, all new projects filing with the MEPA Office will be subject to new pre-filing requirements, starting with  identifying the location of the project relative to EJ populations on a mapping tool. If any portion of the project site is located within an EJ population (as defined in the 2017 EJ Policy), the Proponent is required to consult with the MEPA Office at least 10 days prior to filing to determine an appropriate EJ outreach strategy. According to the Protocol:

[i]n most cases, such strategy shall include, at a minimum, conducting outreach to local EJ groups and, if “English Isolation” (limited English proficiency) is indicated on the mapping tool as an identifying feature of the EJ population, offering, to the extent practicable, translation and interpretation services in languages spoken by a significant portion of the population. These language service requirements shall apply to notices, documents and community meetings that pertain to the proposed project.

The MEPA Office will consider the potential need for enhanced outreach to EJ neighborhoods during the course of MEPA review for any project that must file a mandatory environmental impact report. The Interim Protocol supplements the 2017 EJ Policy, which remains in effect for all projects to which its requirements apply.

With the climate bill back in the General Court to consider Governor Baker’s suggested amendments, and the EOEEA circulating the Interim Protocol for comment on a short time line, these or other major shifts in the Commonwealth’s approach to environmental justice will soon become a reality.

***

For any questions about how these legislative changes may affect your project, contact the attorneys at Mackie Shea Durning, P.C.

 

 

[1] A redline copy of the current MEPA statute showing changes proposed in S.9can be accessed here

[2] A table showing the principal differences between the 2017 Environmental Justice Policy of the Executive Office of Energy and Environmental Affairs and the EJ provision in S.9 l can be accessed here.

 

MASSDEP SETS MCL FOR PFAS IN DRINKING WATER

On September 24, 2020, the Baker-Polito Administration issued a press release to announce that it finalized the regulations to establish a Maximum Contaminant Level (MCL) for per- and polyflouroalkyl substances (PFAS) in drinking water.
 
Simultaneously, MassDEP issued a notice to all public water suppliers (PWS) indicating the final regulations will be published and go into effect on October 2, 2020.
 
The final version of the MCL, which will be part of the revised drinking water regulations at 310 CMR 22.00, mirrors the draft regulations that were disseminated for public comment in December 2019 and establishes a Total PFAS MCL of 20 parts per trillion (ppt) for the sum of six PFAS compounds: PFOS, PFOA, PFHxS, PFNA, PFHpA, and PFDA. The regulations provide a new nickname for the group, the “PFAS6.”
 
The regulatory limit matches the revised Office of Research and Standards Guideline from January 24, 2020, but the new regulations also recognize that the scientific community’s understanding of the toxicological impacts from this broad class of synthetic compounds is still being developed. Section 310 CMR 22.07G(3)(e) of the final regulations directs MassDEP to “perform a review of relevant developments in the science, assessment and regulation of PFAS in drinking water for the purpose of evaluating whether to amend 310 CMR 22.07G(3) in light of any advancements in analytical or treatment technology, toxicology and/or any other relevant information” once every three years. Through this process, the PFAS concentration level could be changed and additional compounds could be added to the list of regulated contaminants in the future.
 
While the December 2019 draft MCL regulations anticipated the largest PWS serving more than 50,000 customers would begin quarterly monitoring by April 1, 2020, the COVID-19 pandemic hampered the agency’s ability to complete the regulatory review process. As a result, the final regulatory package was delayed and the Department set January 1, 2021 as the new monitoring start date for the largest PWS. The final regulations stagger the monitoring start date for PWS serving between 10,000 and 50,000 customers to April 1, 2021, and systems with less than 10,000 customers start monitoring on October 1, 2021.
 
In addition to unveiling the anticipated release of the final MCL regulations, the administration’s press release also announced the recipients of MassDEP’s PFAS Treatment Grants to support the design of treatment systems and reimburse costs and expenses for communities impacted by PFAS in drinking water. Ten water supply systems received grants of $200,000 from the PFAS Treatment Grant program.
 
In combination with the revisions that MassDEP made to the Massachusetts Contingency Plan in December 2019, which established reportable concentrations and cleanup standards for PFAS in soil and groundwater, this new MCL for PFAS in drinking water is another important step toward achieving a comprehensive regulatory framework for detecting and remediating PFAS in the Commonwealth. 
 
 
For more information:
 
John Shea’s newsletter article PFAS: From “Emerging Contaminants” to “Forever Chemicals” provides a survey of the regulatory history for PFAS in Massachusetts up through the draft MCL.
 
Peter Durning is a co-chair and moderator of an upcoming Environmental Business Council of New England (EBC) webinar with the leadership of the MassDEP Bureau of Water Resources on Wednesday, September 30, 2020. The speakers, including Assistant Commissioner Kathleen Baskin, and the Director of the Drinking Water Program, Yvette DePeiza, will certainly address this significant development in the drinking water regulations. Follow this link for more information and registration

RETURN TO THE PFAS ZONE

Just as Jordon Peele is bringing back the haunts and chills of the off-kilter world of the Twilight Zone for Season 2, Massachusetts finds itself being unwittingly drawn deeper into another PFAS Zone rerun.

Without going through a formal public rule making process, MassDEP is once again digging into its regulatory grab-bag to impose unprecedented requirements on industrial actors and permittees in the Commonwealth. In recent draft surface water discharge permits MassDEP issued to Shire Human Genetic Therapies and Genzyme Corporation, MassDEP unilaterally imposed new PFAS monitoring obligations. Though the draft permits acknowledge that “Massachusetts Surface Water Quality Standards do not include numeric criteria for PFAS,” the Department cites 314 CMR 4.05(5)(e) for the “narrative” criteria that “[a]ll surface waters shall be free from pollutants in concentrations or combinations that are toxic to humans, aquatic life or wildlife.”

While the Department’s push to use its regulatory authority to address the prevalence of PFAS in the environment is understandable, using the Office of Research Standards’ Guidelines as a means to backdoor stringent effluent standards on NPDES permittees imposes burdens on individual industrial facilities without any benefit of public notice of a changed regulatory landscape. While Massachusetts Administrative Procedures Act, M.G.L. c. 30A, does not impose a formal requirement that MassDEP perform a full cost-benefit analysis before promulgating regulation, M.G.L. c. 30A, § 5 directs agencies to state the fiscal impact of the proposed regulation on the public and private section for the first and second year as well as the first five years. Rolling out new regulatory initiatives in permit renewals side-steps this requirement to disclose the direct expense of imposing stringent PFAS monitoring criteria on industrial facilities. It also limits a permittee’s time and ability to plan for capital allocations that might be necessary to address or abate otherwise permissible discharges.

Given the prevalence of PFAS and its pre-cursors in a great range of industrial applications, the likelihood that any specific discharge may exhibit some concentration of PFAS is extremely high. That the discharge levels can be mitigated or eliminated either through changed industrial processes or at the discharge point is unknown. Advancing regulatory programs in a public and orderly fashion, not only allows industry to understand what risks and costs they may face, it also spurs innovation in remedial technologies. In contrast, MassDEP’s ad hoc approach is going to cast permittees into a thicket of monitoring requirements and eventually noncompliance for exceedances that do not have proven cost-effective treatment alternatives at this scale. While the regulatory limits for surface water discharges have not been established, the only allowance the draft permits provide for terminating the monitoring requirement is four (4) consecutive quarterly samples being measured at the nano-gram per liter sensitivity “reported as non-detected for all six PFAS compounds.” That is an infinitesimally low bar that few facilities will be able to meet. The one immediate reprieve is the lack of a public EPA multi-lab validated method for testing wastewater.

During the Trump administration, environmental concerns have been given short-shrift at the federal level and inter-governmental cooperation is at a low ebb. Earlier this summer, Massachusetts submitted a public comment letter to EPA on the proposed 2020 Multi-Sector General Permit requesting that EPA add a requirement for annual PFAS monitoring for 13 industrial sectors regulated by the MSGP, which will likely be rebuffed as the two regulatory agencies struggle to find common ground on the administration of CWA NPDES permits. While MassDEP is probably correct to hedge its bet that EPA is not going to salute its proposal to include PFAS monitoring in the MSGP, the Department should not attempt to achieve the same aim by ambushing permittees seeking routine renewals.

The last time we wrote about MassDEP leading drinking water suppliers into the PFAS Zone of demanding remedial action despite a lack of formal regulatory standards was May 2019. In the intervening period, MassDEP slow-walked its MCP and MCL rulemaking process while publically stating that its other regulatory programs were going to have to wait for the Department to assess and determine the specific regulatory thresholds that were appropriate for those activities. Rather than foster the public dialogue that comes with proper administrative procedures and deliberate rule-making, MassDEP is imposing new permit conditions by fiat.

Under the Massachusetts Clean Water Act, M.G.L. c. 21, §§ 26-53, MassDEP has broad discretion to implement water quality regulations. As the SJC noted in Friends & Fishers of Edgartown Great Pond, Inc. v. Dep’t of Envtl. Prot., 446 Mass. 830, 838 (2006), “The statutory purpose of the Act, expressed through its text, makes it clear that the department has the discretion to create regulations that will best preserve and also restore the quality of our waters.” If MassDEP has science-based regulations it wants to promulgate regarding PFAS in surface water bodies, it should harness its internal expertise and publish its regulatory framework with proper technical support and weather the scrutiny of a proper administrative procedure. The regulation will likely be upheld under the Department’s broad discretion, but the rulemaking process will promote better dialogue among MassDEP and the regulated community while helping to foster strategies for achieving compliance rather than fear of enforcement.

Though we will have to wait on a formal opportunity to issue public comments on any proposed Surface Water Quality Standards, interested parties may comment on the two draft 401 certifications and State permits issued to Shire Human Genetic Therapies and Genzyme Corporation. The deadline is Thursday, August 13, 2020.

Written comments may to be submitted by email to npdes@mass.gov, or by regular mail to:

Xiaodan Ruan
MassDEP Surface Water Discharge Program
Bureau of Water Resources
1 Winter Street – 5th Floor
Boston, MA 02108.

Mention Shire Human Genetic Therapies or Genzyme Corporation in the subject line of your email or the reference line of your letter.

If you want to discuss the implications of the development on your permits or collaborate on a comment letter, contact us at Mackie Shea Durning, PC.


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CLIENT ADVISORY: GOVERNOR BAKER ISSUES UPDATED ORDER ON STATE PERMITTING DEADLINES

On July 1, 2020, Governor Charles D. Baker issued a new Executive Order addressing certain state permitting deadlines in light of improved conditions in the Commonwealth during the COVID-19 state of emergency.

The new order, COVID-19 Order No. 42, rescinds the prior state permitting order, Order No. 17, which affected a broad group of state permitting approvals. Read our prior Client Advisory for a description of the affected approvals.

Order No. 42 sets new deadlines for constructive approvals, hearings, decisions, and appeal rights that would have been effective between March 10 and July 1 but were suspended under Order No. 17, and sets a date certain for these deadlines that become effective after July 1 and going forward:

  • Constructive approvals that would have issued during the affected period will now issue on August 17, 2020, and constructive approvals that will issue after July 1 will now issue according to their usual statutory or regulatory deadline or on August 17, whichever is later.
  • Hearings that the permitting agency would have required to commence during the affected period will now commence before August 10, and hearings that would commence after July 1 will now commence according to their usual statutory or regulatory deadline or by August 10, whichever is later.
  • Decisions that the permitting agency would have been required to issue during the affected period will now be issued on or before August 10, and decisions that must issue after July 1 will now be issued according to their usual statutory or regulatory deadline or August 10, whichever is later.
  • Appeal rights that would have expired during the affected period will now expire on August 10, and any appeal rights that would expire after July 1 will now expire according to their usual statutory or regulatory deadline or by August 10, whichever is later.

Order No. 42 also pauses or “tolls” permit approvals which were valid as of March 10 and provides that these approvals will not lapse until after the state of emergency is terminated, when the number of days remaining as of March 10 until the original deadline will be tacked on to end and will establish the new deadline.

The Order, given at 5:30 p.m. on July 1, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

EPA AND ACOE ISSUE NEW “WATERS OF THE UNITED STATES” RULE FOR CLEAN WATER ACT JURISDICTION

In April 2020, two days before the U.S. Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (ACOE), published the Navigable Waters Protection Rule redefining the scope of waters subject to federal regulation under the Clean Water Act (Act or CWA).

The Act, which prohibits the discharge of any pollutant into “navigable waters” without a permit from the EPA under the National Pollutant Discharge Elimination System (NPDES) and the discharge of dredge or fill material into “navigable waters” without a permit from the ACOE under the Act’s Section 404 permit program, defines “navigable waters” as “the waters of the United States, including the territorial seas.” Although the Supreme Court has consistently held that the CWA’s jurisdiction extends beyond waters that are actually navigable, a clear definition of “waters of the United States” (WOTUS) has eluded lower courts and federal regulators since the Supreme Court decided Rapanos v. United States in 2006. In Rapanos, a plurality opinion by Justice Antonin Scalia interpreted WOTUS to cover relatively permanent or continuously flowing bodies of water connected to traditional navigable waters, as well as adjacent wetlands with a continuous surface water connection to these waters. Although concurring in the ultimate decision, Justice Anthony Kennedy wrote a separate opinion with a different interpretation of WOTUS, covering any wetlands that have a “significant nexus” with traditionally navigable waters. The 4-1-4 decision did not establish a clear precedent for the WOTUS definition.

In June 2015, the Obama Administration published the Clean Water Rule to clarify the WOTUS definition after questions arose over the government’s authority when confusion around the WOTUS definition stalled CWA enforcement actions. The Clean Water Rule looked to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and adopted Justice Kennedy’s “significant nexus” standard to implement this objective. The rule thus covered any waters that, either alone or in combination with similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of traditional navigable waters. It established six categories of waters that were jurisdictional by rule; specified waters that were excluded from CWA jurisdiction; and identified two categories of waters (similarly-situated regional waters and floodplain waters) that could be subjected to a case-specific significant nexus jurisdiction analysis.

The new Navigable Waters Protection Rule replaces the Clean Water Rule and, in doing so, shifts the emphasis of the WOTUS definition more in line with Justice Scalia’s plurality opinion in Rapanos. Under the new rule, jurisdictional waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The new rule establishes four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface water flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters. All other waters or features are excluded from CWA jurisdiction.

This new rule will have the effect of further muddying the waters of CWA jurisdiction as the regulatory pendulum swings back once again, risking further confusion in an area where consistency and predictability are key. As the new rule reduces the Act’s reach over the nation’s waters, it is expected that it will also reduce the number of permits required under the NPDES and Section 404 permit programs. There are five lawsuits currently in federal court which are challenging the Navigable Waters Protection Rule, including a lawsuit in Massachusetts federal court.

We will continue to monitor judicial and administrative developments under the CWA as courts, the EPA, and the ACOE apply this new rule. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

By Peter M. Vetere

U.S. SUPREME COURT ISSUES NEW GUIDANCE ON CLEAN WATER ACT PERMITTING

In April, the United States Supreme Court issued a decision that could drastically expand the scope of activities requiring a permit under the federal Clean Water Act (CWA or Act). The case, County of Maui v. Hawaii Wildlife Fund, involved a wastewater reclamation facility in Hawaii that pumped treated waste water into groundwater injection wells, from which the effluent would enter groundwater and flow to the Pacific Ocean.

The Court held that, even though the effluent traveled through groundwater (a non-point source) before entering the ocean, this activity required a CWA permit, because it was “the functional equivalent of a direct discharge from the point source into navigable waters.” In doing so, the Court introduced a new test for determining whether indirect discharges, i.e., when point-source discharges of water pollution enters a non-point source (such as groundwater) before traveling to a water body covered by the CWA, required CWA permits.

The holding is particularly relevant to wastewater treatment facilities who pump treated effluent into groundwater wells, since that is the particular fact pattern at issue; however, it is also relevant to any point source discharger from whom pollutants could travel through groundwater or another non-point source into waters of the United States.

 

CWA Permitting and Application

The CWA prohibits the “discharge of any pollutant by any person” into the waters of the United States without that person obtaining a permit from the United States Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES). The Act defines “pollutant” broadly to include, among other things, any solid waste, sewage, and industrial, municipal, and agricultural waste discharged into water. A “discharge of a pollutant” is any addition of any pollutant to navigable waters from any point source. A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, or well, from which pollutants are or may be discharged.

Less clear is whether, and to what extent, a NPDES permit is required for discharges of pollutants to non-point sources, such as groundwater. Regulation of groundwater has traditionally been left to the states and not the federal government under the Act. Practically speaking, non-point source pollution is rarely traceable to any single discrete source and is, therefore, difficult to regulate through individual permits.

Not too long before the Court’s decision, in November 2019, the federal court in Massachusetts acknowledged the ambiguity inherent in the CWA’s application to discharges of pollutants into groundwater. In Conservation Law Foundation, Inc. v. Longwood Venues & Destinations, Inc., the District of Massachusetts deferred to EPA’s April 2019 interpretative statement on the issue and held that “discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrological connection to navigable waters.” Thus, the Supreme Court’s decision in County of Maui nullified what was the (not at all longstanding) prevailing law on this issue in Massachusetts.

The Court’s Decision and the New “Functionally Equivalent” Test

In County of Maui, a majority of the Supreme Court (in a 6-3 opinion written by Associate Justice Stephen G. Breyer) resolved the ambiguity by applying the CWA to certain discharges of pollutants to groundwater. Under the new test, the addition of a pollutant from any point source requires a NPDES permit when (i) a point source directly discharges pollutants into navigable waters, or (ii) the addition of the pollutants is “the functional equivalent of a direct discharge from the point source into navigable waters.”

Unfortunately, by resolving one ambiguity, the Court may have created more confusion instead of clarifying the law. The majority essentially staked a middle position between two arguments. The petitioner, the County of Maui’s wastewater treatment facility, argued for a bright-line “means-of-delivery” test where only direct discharges from a point source to a covered water required a permit, focusing on the manner in which the pollutant is conveyed to the covered water. The respondents, several environmental groups who filed a CWA citizen suit against the water treatment facility, argued for application of the Ninth Circuit’s “fairly traceable” test, which would have required a permit whenever pollutants are fairly traceable from the point source to a navigable water. The U.S. Solicitor General submitted an amicus brief in support of the petitioner and arguing for the application of the EPA’s April 2019 interpretative statement. The Court declined to grant deference to the EPA’s interpretation, because no party had requested it and because a total exclusion of all discharges through groundwater “would open a loophole allowing easy evasion of the [Act’s] basic purposes.”

In the end, the Court settled on the “functional equivalent” test and identified several factors which may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters:

  • transit time;
  • distance traveled;
  • the nature of the material through which the pollutant travels;
  • the extent to which the pollutant is diluted or chemically changed as it travels;
  • the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
  • the manner by or area in which the pollutant enters the navigable waters; and
  • the degree to which the pollution has maintained its specific identity at the point it enters the navigable water.

The first two factors, time and distance, will be the most important factors in most cases.

The problem with this new test is that it introduces a number of new ambiguities to replace the original ambiguity over whether discharges to groundwater required a CWA permit. The Court acknowledged these shortcomings: the list of factors is not exhaustive (“courts can provide guidance through decisions in individual cases”); the two factors which the Court said are most important will “not necessarily [be important in] every case;” and even when time and distance are important, there is only a sliding scale of the acceptable range (a permit is required somewhere between “[w]here a pipe ends a few feet from navigable waters” and “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later”).

During a status conference in federal district court following the decision, the Maui wastewater facility declared its intent to proceed to discovery and prepare its case for trial in light of the Supreme Court’s ruling. Both parties will have an opportunity to submit additional briefs on discovery issues, which the district court will hear in a further status conference at the end of June.

In combination with the EPA’s newly-promulgated Navigable Waters Protection Rule revising the definition of “waters of the United States,” which takes effect on June 22, 2020, the Supreme Court’s decision marks a major shift in CWA permitting.

We will continue to monitor judicial and administrative developments under the CWA as courts and the EPA apply this new “functional equivalent” test. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

 

By Peter M. Vetere

CLIENT ADVISORY: EXECUTIVE ORDER EXTENDS STATE PERMITS DURING COVID-19 EMERGENCY

Governor Charles D. Baker has issued an Executive Order suspending certain state permitting deadlines and extending the validity of other state permits due to the continued state of emergency that exists in the Commonwealth because of the coronavirus outbreak.

The Order, COVID-19 Order No. 17, affects a broadly-defined group of approvals (except enforcement orders) concerning the use and development of real property; the allocation or use of water or other natural resources; or the discharge, emission, abatement, or management of waste or pollutants, that are issued by state permitting authorities under the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. The Order specifically includes constructive approvals when a state permitting authority fails to act within a specified period of time; requirements that a hearing commence within a specified period of time; and requirements that a state permitting authority issue a decision or request a superseding order of determination within a specified period of time. The Order pauses the relevant time periods for the duration of the COVID-19 state of emergency and for 45 days after its termination, after which the time periods will begin to run again.

Additionally, the Order extends the deadline for filing an appeal of a decision by a state permitting authority if the time for filing the appeal would expire during the state of emergency. The deadline to file these appeals is now 45 days after the termination of the state of emergency. The Order also extends any permits valid as of March 10, 2020, that would have expired or lapsed during the state of emergency; the expiration date of these permits is tolled during the state of emergency (but not for an additional 45 day period).

Finally, the Order suspends the requirement for the Department of Environmental Protection to hold a public hearing for adopting its Intended Use Plan (IUP) for 2020. The DEP may adopt the IUP without a public hearing by publishing a draft IUP and accepting and considering public comments on it.

Previously, Governor Baker issued an executive order requiring all businesses and organizations not designated as “COVID-19 Essential Services” to close their physical workplaces and facilities to employees and the public. The Governor has urged non-essential state employees to remain home and work remotely and has closed many state administrative offices. This new Order explains that “such closures, while essential for public health, are expected to affect the ability of the Commonwealth and its agencies to timely process requests for licenses, permits, approvals, and certificates of registration” and that “the current public health crisis is preventing people and businesses from complying with the deadlines and conditions of permits, licenses, and other approvals issued or granted by the Commonwealth and its agencies.”

The Order, given at 7:05 PM on March 26, 2020, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

The full text of the Order is available at https://www.mass.gov/doc/march-26-2020-permit-extension-order/download. If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

CLIENT ADVISORY: COVID-19 Impacts on Solid Waste

FEDERAL UPDATE
The Federal Motor Carrier Safety Administration consolidates all updates regarding its Expanded Emergency Declaration at the following website: https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19.
 
The Expanded Emergency Declaration, No. 2020-02, which was issued pursuant to 409 C.F.R. § 390.23, covers all 50 states and the District Of Columbia.
 
The Expanded Emergency Declaration “provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for…(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 
The FAQ issued connection with the Expanded Emergency Declaration provides the following clarification:
 
 
Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 

 
MASSACHUSETTS UPDATE
On March 20, 2020, Governor Baker issued a Declaration of Emergency Notice, pursuant to 49 C.F.R. § 390.23 declaring “that an emergency exists pertaining to an essential service, the intrastate pickup of residential and commercial refuse from residences and businesses and the delivery of such refuse to recycling and landfill sites within the Commonwealth of Massachusetts.
 
 

 
From concerns over infectious trash, to an expected shortage of employees, the solid waste industry and regulators are busy developing contingency plans to address possible impacts of COVID-19.
 
 
The industry has historically weathered flu seasons and earlier outbreaks.  Thus, in its March 6 Guidance on Coronavirus (COVID-19) the Solid Waste Association of North America has not recommended any special precautions to protect waste workers from COVID-19.  Nevertheless, the Association recommends that employers and managers review the US Centers for Disease Control and Prevention’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

Similarly, the National Waste and Recycling Association (NWRA)’s March 9th FAQ on 2019 Novel Coronavirus states that “[b]ased on discussions with the CDC, waste from households can be managed as they typically would be for the flu. No special precautions are necessary.” For worker safety the NWRA recommends the typical “general precautionary measures” and references OSHA’s requirement that workers use appropriate engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposure.
 
More recently, OSHA has issued an Alert to Prevent Worker Exposure to Coronavirus (COVID-19) that contains the same precautions we have heard repeatedly on the news and from public officials and a Guidance on Preparing Workplaces for COVID-19 which does not categorize workers in the solid waste industry as either medium or high risk of exposure.
 
Beyond concerns over the trash itself and worker safety, the industry is concerned about the effect of emergency declarations and strict regulations on its ability to operate.  In order to address the foregoing concerns, on March 16, the NWRA sent a request to all states for regulatory flexibility in handling of municipal solid waste, yard waste and recycling. Separately, the NWRA has requested a “Critical Industry” designation from Governor Baker that would exempt the industry from economy wide constraints that the government may promulgate under the Governor’s Declaration of a State of Emergency.
 
Possible employee shortages are the main concern.  A waste handling facility without employees cannot run itself, nor do garbage trucks drive and pick up waste without drivers.  The industry and regulators are anticipating possible facility outages or difficulties moving waste.  In addition to typical curb side collection of commercial and residential waste, the industry in New England relies very heavily upon long-haul trucking and rail of waste to out-of-state landfills such as those in New York, Ohio and Virginia.  Since there is not enough disposal capacity within New England for all of our waste, if transport to these out-of-state landfills is curtailed, waste will back up locally.  The same holds true for facilities within Massachusetts. For example, about 66% (3.2 M tons/yr.) of our municipal solid waste goes to 7 energy from waste facilities.  If one of these facilities cannot operate due to employee absences, the waste will need to be redirected.  Currently there is no flex built into the system to accommodate that additional waste. In order to avoid the specter of waste piling up at the curbside, industry and government officials are discussing various temporary local relief valves, such as lifting facility tonnage limits, to absorb whatever backups may occur
 
Let’s hope that none of these eventualities come to pass and that our social distancing will flatten the curve enough to keep people healthy and get the economy back up and running soon.  Meanwhile, bag your waste and wash your hands!
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Waste Wars: How the 2030 Solid Waste Master Plan Is Shaping the Future of Trash in MA

 

All you have to do is point,” claims 1-800-Got-Junk. Well, not exactly, at least not in Massachusetts.  Here, we study our trash, sort it, treasure it, and, more recently, debate it.  And that is not a bad thing, at least for some of us. If you love trash as much as we do (or even if you hate it), then by all means, read the more than 85 comments that have been filed on MassDEP’s draft 2030 Solid Waste Master Plan.  

Slogging through the 117 pages of comments can be tedious, but to us they are informative, entertaining, and, most importantly, illuminate the huge divide between industry, environmentalists and public officials on this otherwise mundane topic.  Luckily, you can read this absolutely unbiased and neutral summary.  Even better, you can call any one of us here at Mackie Shea Durning, PC to get the inside scoop on the state of waste in the Commonwealth.

The governing statute, M.G.L. c. 16, § 21, passed as part of the Solid Waste Act of 1987, St. 1987, c. 584,  provides, in part, that: “[t]he comprehensive statewide master plan referred to herein shall describe, to the maximum practicable extent, a short and long-range program for disposal of solid waste throughout the commonwealth, the solid waste facilities which the department determines to be necessary or convenient to the disposal of such waste in a manner which protects the public health, safety and environment and is financially sound, and the funding for the development of such facilities which the department finds to be reasonable necessary.” In brief, we believe that the draft 2030 Master Plan meets this legal threshold, even if it relies upon out-of-state disposal facilities as “necessary or convenient to the disposal of such waste  . . .” Nor do any of the commenters claim that the MassDEP has failed to fulfill its statutory mandate.  However, some commenters assert that the Department is obligated to go further in order to satisfy the greenhouse gas reduction requirements of the Global Warming Solutions Act.  For example, industry commenters decry the fact that about 21% of our waste is exported out-of-state, an expensive proposition with a large carbon footprint. They complain that the moratorium on new energy from waste capacity increases greenhouse gas emissions when waste is hauled long distances to out-of-state disposal facilities.  Environmental organizations counter that continued reliance on landfilling and combustion, as opposed to waste reduction and reuse, creates its own greenhouse gas problems.  

The principle divide in comments on the draft 2030 Master Plan is between industry pleas to lift the moratorium on new waste to energy capacity in order to improve in-state disposal capacity, countered by environmentalists’ insistence that to truly achieve their “Zero Waste” goal, no new capacity should be developed and that all existing waste to energy plants and landfills should be shuttered.  

The draft 2030 Master Plan really does not directly address either of these divergent points of view.  It certainly embraces the core concept of waste reduction by targeting a 90% reduction in disposal by 2050, but it also pragmatically recognizes the trend of increasing export of waste to distant states.  Since we face diminishing in-state capacity to trash the trash, and apparently little appetite in the public or private sector to take on the challenges of developing a new end facility to handle the dregs here in the Bay State, the draft 2030 Master Plan essentially acknowledges that rail is rapidly becoming a critical component of the state’s solid waste infrastructure.  The overwhelming industry trend right now is to permit rail handling facilities intended to take advantage of the lower rail transportation costs to landfills with large capacities and lower tipping fees in Ohio and other distant states, which the Commonwealth officially deems to be available capacity for Massachusetts waste. (While the majority of Bay State waste will head for the mid-west or south, Massachusetts will continue to truck a fair amount of waste to Waste Management’s Turnkey Landfill, just over the border in Rochester, New Hampshire, and to the landfills in Western New York State.)

Net Export Policy:  Back in the day, one of the policy goals of the Beyond 2000 Master Plan was that “on balance we should be neither a net importer nor a net exporter of trash.”  By the time the 2010 Master Plan entitled “Pathway to Zero Waste” was finalized in 2013, the MassDEP’s focus had shifted from providing for our own disposal capacity to “reducing waste and by recycling and composting more, [so that] we can reduce our need for overall disposal capacity and reduce the amount of waste that we will need to ship to other states for disposal as Massachusetts disposal capacity diminishes.”

Long gone now are those Yankee philosophy days “that we should take responsibility for managing our own solid waste.”  (If you nostalgically yearn for those days, I have a Victrola and some 78 records I would be happy to sell you.) Both industry and environmental groups criticize this de-facto export policy, for diametrically opposed reasons. Industry identifies the risk of import restrictions or market changes outside of Massachusetts’ control; whereas, environmental groups fear that continued exports will create a system with a vested interest in continued export for disposal that will undercut domestic waste reduction initiatives.

Recycling/MRFs/Organics:  Given its continued reliance on recycling, it is ironic that the draft 2030 Master Plan really does not grapple with the effects of China Sword on the recycling markets. Rather than take on the difficulties of the collapsed international market in recycled commodities, the Department is shifting its focus to remedies at home to try to improve the quality of recycled materials and develop markets.  To do so, it will develop working groups to produce comprehensive plans to foster source reduction and reuse opportunities and the development of markets.  The Department also intends to continue to use existing tools, such as grants and loans and new collaborations/partnerships to develop markets for food material, furniture and other bulky materials, glass, and textiles.  Commenters emphasized the need to invest further in recycling based, in part, upon the conclusion of the Massachusetts Materials Management Capacity Study that we are using 100% of available in-state recycling capacity.  (One would expect that we would have plenty of recycling or material recovery facility (MRF) capacity, given the relatively low permitting barriers to entry, but the unstable commodities markets for recycled materials appears to have stifled investment.)  Although most of the Department’s initiatives along these lines are universally supported, a proposal to mandate that all haulers provide recycling services raised concern among the haulers. As part of its waste reduction strategy, the draft 2030 Master Plan calls for a significant increase in organics diversion, including a planned expansion of the food waste disposal ban to capture much more organic material.  (The Department can take comfort in the fact that the Materials Management Capacity Study reported ample organics processing capacity.  However, the Department’s organics management framework has not escaped criticism by the environmental community, which argues strenuously against continued anaerobic digestion of food waste with biosolids, particularly in light of recent concerns about PFAS in biosolids and inability to reuse the resultant organic products.)

Energy from Waste:  Ten years ago in the “Pathway to Zero Waste,” the state opened its arms to new technologies, like pyrolysis and gasification. But nobody has taken up that opportunity. The moratorium on conventional energy from waste plants will remain in effect, except to the extent the seven existing plants will eventually need replacement.  However, continued reliance on energy from waste is not guaranteed. The Department intends to review the need for existing energy from waste facilities every five years and to require any replacement plants to meet more stringent efficiency and emission standards. As noted above, several environmental organizations are calling for the closure of the existing plants and that the partial lifting of the moratorium be ended, so that no new plants can be built.  The commenters continue to assert that emissions from energy from waste plants harm human health (particularly in the environmental justice communities, where some E from W facilities are located) and that they discourage the waste reduction and recycling that will be needed to achieve “Zero Waste.”

Landfills:  Although there is no official state mandated moratorium in place, there seems to be an unofficial municipal or private sector moratorium on new landfill capacity, since there are no current proposals for a new or significantly expanded MSW landfill.  Bourne and Crapo Hill are the two exceptions, with Bourne likely devoted to SEMASS ash and Crapo Hill husbanding its capacity for its Greater New Bedford Regional Refuse District member communities and limited outside MSW. Again, based upon their concerns over environmental and health impacts, the environmental organizations comments advocate for the phasing out of landfills as part of their vision for a Zero Waste future.

(It seems ironic to the author that Western and Central Massachusetts host only one MSW landfill, when just a decade ago, they were primo trash destinations.  What remains is only Waste Management’s Westminster Fitchburg landfill up north, with four years of remaining capacity. The Southeast Region hosts three municipal landfills: Bourne and Crapo Hill, mentioned above, and the small Middleboro landfill, run by Waste Management.  Nantucket takes care of island MSW.  And, of course, the Boston area, encompassed in the Northeast Region, would never agree to host an MSW landfill. Apparently, until Zero Waste is achieved, Hubsters will have to remain content to have their trash shipped out-of-state or converted to energy at one of the three energy-from-waste plants in the Region.)

New Waste Bans:  Within the next few years, the Department is going to propose additional bans on the transfer and disposal of organics, and perhaps mattresses and textiles. Commenters were generally very supportive of the state’s intention to double down on the existing organics ban to make it applicable to generators of one-half ton per week of food waste, which will capture many more generators and more organics volume than the existing one-ton per week applicability threshold.  However, certain environmental organizations generally argued that the state should go further and implement a ban on disposal of any food waste.  At least one industry commenter advocated for loosening of the restrictions on use of digestate from on-farm digesters.

Extended Producer Responsibility:  We would be remiss if we did not praise the 2030 draft Master Plan’s overarching goal to reduce waste 90% by 2050 as both good and ambitious. The goal relies, in part, on extended producer responsibility requirements that will admittedly require legislation.  Because Massachusetts is only a small part of the wider economy, ambitious plans to require companies, such as Amazon (whose gross sales equate to about one-half of Massachusetts’ GDP), to reconfigure all of its packaging, are unrealistic.  But less ambitious take-back initiatives, for paint, electronics and carpet should be achievable.  While some of these changes may isolate Massachusetts in the short-term, in the long-term, the Commonwealth will be able to take advantage of its early adopter status.  In a preface of legislative battles to come, comments from packaging producers embraced the Department’s use of “pay as you throw” programs and increased support for recycling, but did not endorse any form of packaging producer responsibility legislation.  

Climate Change:  Achieving the waste reduction goal will be key to the Commonwealth actually living up to the mandate of the Global Warming Solutions Act, to reduce GHG emissions 80% by 2050.  As in the case of waste export, both environmental groups and industry commenters jumped on the GHG reduction bandwagon, but for very different reasons.  Pragmatically expecting the need for continued waste disposal, industry commented that development of in-state capacity is essential to reduce GHG emissions from long-haul transportation (and E from W touted its GHG advantages over landfilling).  In a more puritanical approach, environmental groups want to eliminate waste disposal entirely to avoid the GHG emissions associated with excess production, consumption and disposal of goods.  Regardless, the changes in producer responsibility and materials management required to meet the MassDEP’s 90% waste reduction goal will pale in comparison to the economy-wide changes necessary to reduce GHG emissions to levels called for in the Global Warming Solutions Act. 

Whether future legislators and governors will have the political will to make the requisite drastic changes, is in serious doubt.  It was not that long ago, when the embattled Fall River Mayor backed off the City’s controversial purple bag “pay as you throw” program on the eve of his recall election.  Imagine the political backlash when voters are required to leave their cars at home and take mass transit to work.  

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