Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment).

This fall the MassDEP expects to finalize its Draft Fact Sheet Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan.  In the draft Guidance, the Department states that PFAS are “hazardous materials” under M.G.L. c. 21E and the Massachusetts Contingency Plan (MCP) at 310 CMR 40.0006 (12). Although Reportable Concentrations and Method 1 Cleanup Standards have not been set (which requires a change in the regulations comprising the MCP), a notifiable condition would exist under the MCP for PFAS releases that pose an Imminent Hazard and a Method 2 or Method 3 Risk Characterization would apply to a disposal site with PFAS as contaminants of concern.

On October 9, EPA Administrator Scott Pruitt announced that he would reverse the Obama Administration’s Clean Power Plan, that was designed to greatly reduce greenhouse gas emissions from fossil fueled power plants.  Although both the President and Pruitt are climate change skeptics (some might say deniers), a leaked draft Federal Register notice rescinding the Clean Power Plan regulations does not address climate change, but relies upon a reversal of the EPA’s previous legal interpretation of its authority to regulate emissions under the Clean Air Act outside the fence line of the emitting source.

On October 3, 2017, Judge Leibensperger of the Suffolk Superior Court issued his Memorandum and Order on Steadfast Insurance Company’s Motion for Summary Judgment denying the insurer’s request for a ruling that there was no insurance coverage under its Pollution Liability Policy issued to Casella Waste Systems for MassDEP claims under M.G.L. c. 21E arising from the discovery of 1, 4 dioxane and certain volatile organic compounds in private drinking water supply wells near the Southbridge landfill.  Despite evidence of monitoring reports revealing the detection of these compounds from earlier groundwater and private well monitoring, the Court ruled that there is a genuine issue of disputed material fact whether the DEP claim resulted from a “new pollution event” and was not known to Casella prior to commencement of the insurance policy.

On October 2, 2017, the SJC issued its opinion in Smith v. Westfield  that modifies the law surrounding conversion of park land to another use under Article 97 of the Amendments to the Massachusetts Constitution.  Under the decision, it is no longer necessary for a restriction on change in use of municipal park land to be recorded on the deed for the property, provided the land has been dedicated to a public park.

On August 11, 2017, MassDEP promulgated a set of final regulations  designed to fulfill its obligations under the Green Communities Act spelled out by the SJC in Kain v. MassDEP  that “impose a limit on [greenhouse gas] emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emission limits for each year, and set limits that decline on an annual basis” to meet the requirements of Section 3(d) of Chapter 21N of the General Laws, reported on in our Spring 2017 newsletter.

The MassDEP also has pending amendments to various other regulatory programs reflected at this link.  Most recently it is considering public comments on its proposal to amend a package of air pollution control regulations regarding Stage I Enhanced Vapor Recovery Systems (310 CMR 7.24 (3)); outdated regulations regarding Conversions to Coal (310 CMR 7.17); Sulfur Dioxide Emissions Limitation (310 CMR 7.21); Acid Rain (310 CMR 7.22); and the Massachusetts Green Fleet Program (310 CMR 7.45).

In addition, the Department has still not promulgated another significant suite of air regulations first proposed in August, 2016 pertaining to: Plan Approvals (310 CMR 7.02); Operating Permits (Appendix C); Source Registration (310 CMR 7.12); Engines and Turbines (multiple section); Solvent Metal Degreasing (310 CMR 7.18); VOC RACT (310 CMR 7.18 and other sections); NOx RACT (320 CMR 7.19); NOx Ozone Season Budget Program (310 CMR 7.32 and 7.34); and Appeals (310 CMR 7.51).

Recently the MassDEP (and all other Commonwealth agencies) unveiled its new website.  Unfortunately, the new website is not fully functional and during the time that the “legacy site” materials are being migrated to the new website, the legacy site is frozen.

On August 8, 2017, as reported in our Client Advisory, the Secretary of the EOEEA announced the new Energy and Environment Information and Public Access System (EIPAS) including the permitting “ePlace”  portal and the Information Data portal.

In July, in what it calls its National Sword, China announced to the World Trade Organization that it would stop importing 24 different types of solid wastes including certain mixed paper and plastic recyclables, upsetting the US recycling marketplace, which relies very heavily on exports to China.  The MassDEP is working with the recycling industry to address concerns about potential need to store recyclables longer than usual and increase residue limits to reflect the higher residue removal required to meet tighter Chinese import standards.  It is also working with both the industry and municipalities on improving the quality of recyclables and processing to meet China’s proposed very strict (0.5%) contamination limit.