NEWS

Climate Change: Believe Your Eyes

As summer closed, we took a family vacation to Oregon.  In addition to lingering in Powell’s Books, eating from food trucks, and drinking local brews and Stumptown Coffee during several days in Portland, we borrowed a friend’s car for excursions to Cannon Beach and the Columbia River Gorge.   As part of our family goal to someday visit all 50 states, we made sure to cross into Washington.  We grabbed that extra state with a dramatic pedestrian crossing over the Bridge of the Gods, which serves as the Columbia River crossing on the Pacific Crest Trail.

After a restful and restorative trip, I returned to work after Labor Day, as news of the Eagle Creek Fire along the Oregon/Washington border brought the reality of Western wildfires to a personal level.  With visions of our triumphal Columbia River crossing still fresh, it was harrowing to learn of the breadth and rapid spread of the Eagle Creek Fire, which allegedly was started with a discarded firework.  Careless fireworks are always a risk, but in the tinder box of the exceedingly dry Pacific Northwest forests this summer, this act of carelessness devastated over 50,000 acres.

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Firm Activities – Fall 2017

     John Shea moderated the October 3, 2017 EBC Program Series with MassDEP Leadership: Commissioner Martin Suuberg and the Southeast Region Leadership.  The Commissioner was frank and affable in his keynote remarks, sharing MassDEP’s noteworthy achievements, top priorities, and the challenges from recent retirements and federal budget cuts.  Using “A Day in the Life” motif, the SERO leadership showcased the breadth, depth and volume of its work in numerous programs, amazing success stories, and ambitious projects on the horizon.  A large audience of environmental professionals enjoyed insightful and sometimes humorous presentations from Regional Director (RD) Millie Garcia-Serrano, Deputy RD of Water Resources Dave Johnston, Deputy RD of Waste Site Cleanup Gerard Martin, Deputy RD of Air and Waste Maria Pinaud, and Deputy RD of Administration Jennifer Viveiros.

     Tom Mackie moderated the September 19, 2017 EBC Solid Waste Management Program: Update from the MassDEP Regional Solid Waste Section Chiefs.  A standing room only crowd heard about facility permitting, enforcement, changes and developments and top priorities from Greg Cooper, Division Director at the MassDEP Bureau of Air and Waste, and from the four regional Section Chiefs: Mark Fairbrother (NERO), James McQuade (CERO), Mark Dakers (SERO), and Daniel Hall (WERO).  There was a lively Q&A session.

     As a member of the Massachusetts Water Works Association (MWWA) Legislative Committee, John reviewed comments in opposition to a Rivers Alliance Petition to condition water withdrawal registrations (which MassDEP denied), to EPA on proposed aluminum limits in water treatment plant discharges in NPDES General Permits, and on proposed legislation for lead in school drinking water.  He attended the Summer Expo at Wachusett Mountain.

     Peter Durning, as co-chair of the Boston Bar Association Energy and Environmental Section, is overseeing the development of robust and interesting education programs for 2017-2018, including a presentation by former EPA Administrator Gina McCarthy.

     Tom  undertook a family pilgrimage to ancestral lands in Ireland and Scotland.  Peter  enjoyed a family vacation in Seattle and on the shores of the frigid Pacific.

     Tom, Peter, and Gail attended the Boston Bar Association Annual Meeting in October.

Alum Carson M. Shea, Esq. is a litigation associate at Cornell & Gollub, was sworn into the RI Bar, and co-authored an article in the Professional Liability Defense Quarterly (v. 9, #3).

The law firm enjoyed a summer celebration at Pier 6 in Charlestown arranged by Denise Green.

Firm Successes – Fall 2017

Tom Mackie and John Shea were selected by Best Lawyers of America (2018 edition) for Environmental Law and Environmental Litigation.  The Firm was ranked in Best Law Firms as Tier 1 Boston and Tier 2 nationally.  Best Lawyers is the oldest and most respected peer- review publication in the legal profession for “legal expertise, ethics and professionalism of the highest caliber.”

Peter Durning obtained Special Permits approving the Town of Concord’s replacement of an aged public water supply treatment facility and surface water intake pipe, after a year-long hotly contested public hearing.      

John conducted a multi-day public hearing on a transfer station site assignment modification for the Northbridge Board of Health.

Peter obtained an Order of Conditions approving a uniquely designed single-family home against vociferous neighborhood opposition for over a year in Arlington.

The New England Real Estate Journal selected John’s client’s commercial mixed-use development as “Project of the Month” (September 22-28, 2017, Section B, centerfold, nerej.com).  Olde Shrewsbury Village was a colonial-style shopping center with a footbridge at the junction of Routes 9 and 20 in Shrewsbury.  Turtle Rock, LLC, the owner, developed an ambitious revitalization plan that included relocating an internal stream to the property perimeter in order to create parking close to the retail shops.  Mackie Shea was on an elite development team that advanced a creative technical, legal and political strategy, and over four years secured local, state and federal permits and approvals.  Little Bummet Brook was transformed from a stormwater drainage ditch into a vibrant stream and ecosystem.  Construction was timed to avoid potential impacts to the Northern Long-Eared Bat, a newly listed endangered species.

John obtained two novel Advisory Opinions under MEPA. The first confirmed that land alternation (including a 5-year look back) did not require environmental review for a 50-acre commercial subdivision in Lancaster.  He also secured a Determination from MassDEP that a wastewater treatment plant is not required, and assisted in obtaining public water supply wells for the “anchor” businesses.  The second Advisory Opinion confirmed that an Eversource solar power array on his client’s coal ash landfill was non-jurisdictional, and could proceed with MassDEP post-closure use permitting.

John negotiated Administrative Consent Orders (ACO) with MassDEP approving wetland restoration and mitigation for sedimentation for a national home builder, a regional condominium developer, and a national assisted living and memory care company for historically filled wetlands and an MCP Brownfields cleanup.

Tom successfully defended against a Town’s attempt to invalidate the extension of contracts to operate a municipal transfer station, and to transport and dispose of the Town’s waste; negotiated a purchase and sale agreement for acquisition of a recycling facility on a Brownfields site; and obtained a site assignment modification allowing a construction and demolition debris processing facility to transfer by rail municipal solid waste and mildly contaminated soil.

Tom obtained reconsideration and reversal of a regional electrical transmission authority’s determination that a request for extension of an interconnection agreement with a transmission company was a major modification, avoiding new interconnection studies and applications.

Tom and John were named for Environmental Law and Peter for Environmental Litigation to the 2017 Massachusetts SuperLawyers List.  Gail Hire was selected as a Rising Star.  SuperLawyers have attained a high degree of peer recognition and professional achievement.  The designations are based on third-party research, balloting by lawyers, and a peer review process.

Tom Mackie Provides Pro Bono Legal Services to the Greenwood Memorial United Methodist Church in Dorchester

With pro-bono legal help from Tom Mackie the Greenwood Memorial United Methodist Church in Dorchester recently replaced its roof and made significant other exterior repairs. The Greenwood Church was constructed between 1900-1901 and designed by Boston architect Walter J. Paine. The building is a shingle-style Gothic Revival, and is listed on the National Register of Historic Places. In 2016, the church received an emergency grant from the Massachusetts Historical Commission Preservation Projects Fund to address roof and wall leaks.

Tom has provided pro-bono legal help to the Greenwood Church for over a decade. His first project involved the installation of a handicap access ramp project co-sponsored by the Sudbury United Methodist Church sister congregation that Tom attends. For the roof replacement project, Tom worked with Greenwood Trustee, Jeanette Merren, to document a loan from the United Methodist Foundation, satisfy requirements of the Mass Historical grant, and review the construction contract.

Is There a Liability Exemption for Emerging Contaminants Under G.L. c. 21E; and Oh, Gosh, Do I Need to Notify the DEP If I Find Them?

As you are surely by now aware, the federal and most state governments have recently begun to regulate several new classes of chemicals, including Per- and Poly-Fluoroalkyl Substances (“PFAS”). Regulators have also lowered the concentrations at which certain chemicals historically listed as hazardous materials/substances are considered to pose a risk, such as 1, 4 dioxane and TCE. Last spring, I authored MassDEP’s TCE Closed Site Review: The Legalities which concluded that a landowner of a permanently closed TCE site revisited by the MassDEP should be entitled to the liability exemption under G.L. c. 21E, §5C even though the MCP purports to require further response actions.

What my article did not discuss is whether the liability exemption under Section 5C of G.L. c. 21E would protect such an “eligible” owner from liability for an emerging contaminant that is first discovered and first considered to be a hazardous material like PFAS after the site achieved a permanent solution. Likewise, my article did not address whether such an owner would have to report its knowledge of the presence of such contaminants to the MassDEP. I conclude that because of the narrow language of Section 5C those owners should be prepared to address emerging contaminants under the MCP and c. 21E or risk liability to the MassDEP and they must notify the MassDEP if the concentrations pose or could pose an imminent hazard.

Liability Exemption?
Section 5C of c. 21E states that “an eligible person shall be exempt from liability . . . pursuant to this chapter . . . for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion . . .” For the liability exemption to apply, the “permanent solution or remedy operation status” and the “waste site cleanup activity opinion” must exist and be maintained for “any release of oil or hazardous material at the site.” The statute does not appear to exempt the owner from liability from the entire site but only exempts the owner from liability “for any release of oil or hazardous material” for which a permanent solution or remedy operation status exists and is maintained. Whether the Legislature’s reference to “any release of oil or hazardous material at the site” is broad enough to exempt the owner from liability for releases of hazardous materials that were not actionable at the time the permanent solution or remedy operation status were filed or only those that were actually assessed is unclear. Heavy emphasis on “any” hazardous material would support the application of the exemption. A more narrow reading (which is ordinarily applied by the courts in reviewing public health and safety legislation) would only exempt the owner from liability for releases of oil and those hazardous materials that were actually assessed as part of a waste site cleanup activity opinion in support of the permanent solution or remedy operation status. This differs from the case of a reopened TCE site because a permanent solution or remedy operation status “exists and is maintained” for “the release of oil or hazardous material [i.e. TCE] at the site” in accordance with the waste site cleanup activity opinion. The same legal framework and analysis for the lowered action levels for TCE should apply equally to contaminants such as 1,4 dioxane, that have historically been listed by the MassDEP as hazardous materials but have recently been assigned much lower action levels. Both must be properly addressed as part of the LSP Opinion.

Notification Required?
Chapter 21E, § 2 defines “hazardous material”

material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil. The term shall also include all those substances which are included under 42 USC Sec. 9601(14), but it is not limited to those substances.

Under this broad definition, PFAS are hazardous material because of their toxicity.

Chapter 21E, § 7 requires notice to the MassDEP of releases of hazardous materials:

Any owner or operator of a site or vessel, and any person otherwise described in paragraph (a) of section 5, . . ., as soon as he has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify the department thereof.
However, under that same section the MassDEP has published in the MCP “regulations establishing thresholds below which notification shall not be required by this section.”

Without diving into the numerous and complex exceptions to notification, generally under 310 CMR 40.0311, notification is only required for a release or threat of release of a hazardous material for which MassDEP has promulgated either a Reportable Quantity or Reportable Concentration or if the hazardous material exhibits one or more of the characteristics of hazardousness at 310 CMR 40.0347 (ignitability, corrosively, reactivity, toxicity, or infectiousness). Because MassDEP has not promulgated Reportable Quantities or Concentrations for PFAS (and they are not characteristically hazardous), mere detection of PFAS does not require notification. However, two hour notification is required if the PFAS “poses or could pose an imminent hazard.” 310 CMR 40.0311(7). An “imminent hazard” is defined in relevant part as “a release to the environment of oil and/or hazardous material which poses a significant risk to human health when present for even a short period of time, as specified in 310 CMR 40.0950.” 310 CMR 40.0321 (1)(d). 310 CMR 40.0950 requires that a Method 3 risk assessment method shall be performed to determine if an imminent hazard to human health exists. A Method 3 risk assessment includes use of Reference Doses and Reference Concentrations for toxicity and Carcinogenic Slope Factors and Unit Risk Values for cancer risk. According to MassDEP’s Draft Fact Sheet Guidance on Sampling for PFCs, the USEPA has established a Reference Dose of 0.00002 mg/kg/day, documented in the Drinking Water Health Advisory, which would serve as the basis of a MCP Risk Characterization.

In conclusion, eligible persons who own sites where emerging contaminants are discovered are not exempt from liability or notification of the detection of such contaminants. If there are no promulgated RCs or RQs for the contaminant, a Method 3 risk assessment will be required to determine if an imminent hazard exists and notification is required. In that case, 2 hour notice is required. If an imminent hazard exists, the responsible party will need to notify and perform an immediate response action and follow on MCP assessment and possible remediation. Even if no notification is required, the responsible party is required under the MCP to carry out response actions and is not exempt from liability to the MassDEP for failure to take such actions.

Afterward
When I first started to dive into this dense analysis (apologies to the reader), I experienced cognitive dissonance. I simply could not get my mind around the concept that decades old closed sites could present a whole new set of engineering, legal and financial problems. I felt like Marty McFly in Back to the Future. Although CERCLA has statutory “reopeners,” that concept seems foreign to the Massachusetts site clean up arena under the MCP and c. 21E. Not until I read the EPA’s Health Advisory on PFOA, did the potential public health risks start to sink in and my head clear.

I am not sure that the liability framework under CERCLA and c. 21E is the best means to address emerging contaminants. Aside from creating cognitive dissonance, I wonder if it is fair (as if CERCLA and 21E were ever fair) at this time, to require somewhat remote parties (i.e. people other than manufacturers who released these chemicals to the environment) to be legally responsible for exceedingly low concentrations of ubiquitous chemicals that were in the stream of commerce as products, and had nothing to do with waste disposal decisions. Regardless, for now, LSPs, responsible parties and their non-environmental counsel need to clear the mental fog and take their reporting and response obligations for emerging contaminants seriously – – at least until we invent a better mouse trap. For if this is just the beginning of a much bigger long-term trend, I fear that the existing “polluter pays” approach will not be workable.

By Tom Mackie

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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). Read More → “Environmental Law Update – Fall 2017”

EEA EIPAS Puts Environmental Compliance Online

Yesterday, the Executive Office of Energy and Environment (“EEA”) launched the first phase of its Energy and Environmental Information and Public Access System (“EIPAS”). EIPAS currently provides two portals: ePLACE  provides citizens access to information on EEA and agency permit applications and final decisions, as well as to submit and view public comments on permit applications; whereas, the Data Portal contains MassDEP permit, inspection, facility and enforcement data.  According to the release, EEA will update data daily, a tall but very helpful order.

Currently, EIPAS covers online permitting for DCR, MDAR, and MassDEP including virtually all MassDEP air quality permits. So far there are no mandatory regulations requiring online filing. Other types of MassDEP permits, such as solid waste permits, are not yet ready for electronic submittal. The site indicates that it hosts applications submitted online since May 5, 2017, but so far there are no entries.
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MassDEP is Calling RCC Permit Applications

If you are operating a recycling or composting facility under a Determination of Need (DON) and have not updated your permitted status, time is up.  The final deadline to bring a DON facility into compliance with the 2012 recycling/composting regulations was May 23, 2017.  If you have not filed papers with MassDEP yet, you need to act now.

Owners of DON facilities have one of three options: certify that the facility is exempt under 310 CMR 16.03, certify that the facility qualifies for a “General Permit” under 310 CMR 16.04 or apply for a site specific “Recycling Composting and Conversion” (RCC) Permit under 310 CMR 16.05.

The requirements to qualify for a General Permit are stricter than those that applied to a DON.  Consequently, you may find that your DON facility now requires a site specific RCC permit. For example, to qualify for a recycling facility General Permit the owner/operator shall “ensure that the operation handles recyclable materials and residuals only within a handling area, containers or trucks that are sufficiently enclosed and covered to prevent a public nuisance.” We understand that the Department interprets this to mean that all asphalt, brick and concrete recycling operations must be enclosed to qualify for a General Permit, which was not a DON requirement under the old regulations.

Due to the stricter General Permit criteria, and the dramatic consequences of filing a false or incorrect “Certification” with the MassDEP, we are advising clients to consult with us before filing a Certification to come into compliance.

For questions, call or email Tom Mackie.

MassDEP’s TCE Closed Site Review: The Legalities

MASSDEP’S TCE CLOSED SITES REVIEW: THE LEGALITIESIn April 2016, the MassDEP initiated an effort to evaluate closed TCE sites. The Department is “screening nearly 1,000 closed sites with known trichloroethylene contamination to determine at which sites TCE has the potential to pose an Imminent Hazard based on the current understanding of health risks, even if a site was previously closed properly under earlier standards.”  Its strategy is to “systematically review past closures and, where necessary, work with site stakeholders to identify and eliminate any ongoing Imminent Hazards.”

It certainly stands to reason that the MassDEP’s duty to protect public health, welfare, and the environment, encompasses the authority to require responsible parties to take necessary and appropriate response actions at sites where newly understood hazards exist, even though former science might have justified regulatory closure.  But how can that basic principle be reconciled with our general understanding that a permanent solution provides a “liability endpoint” for a responsible party?

The 2006 brownfields amendments, codified in Section 5C of chapter 21E, provide a liability endpoint for persons who properly perform MCP response actions to completion.  Specifically, under Section 5C (a) “an eligible person shall be exempt from liability . . . pursuant to this chapter . . . for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion . . .”  Permanent solutions are achieved under Section 3A of the statute by achieving a level of no significant risk at a site. The import of these sections taken together is that a person’s liability ends if his or her site poses “no significant risk” such that a “permanent solution” has been achieved and maintained.

So if an eligible party reaches a condition of no significant risk, achieves such a permanent solution and is statutorily “exempt from liability,” how can the MassDEP require that same person to later take further response actions (absent an audit finding or other violation of the MCP)?  Is there something in the statute or Massachusetts Contingency Plan that provides the MassDEP with a reopener if science reveals that the level of TCE once considered no significant risk, is later determined to pose a significant risk?

The MassDEP’s definition of “no significant risk” appears to support a conclusion that later adopted standards cannot be the justification for MassDEP enforcement against a site owner who properly achieved a permanent solution. “No significant risk” requires that no “identified substance of concern” shall present a “significant risk of damage to health, safety, public welfare, or the environment during any foreseeable period of time.”  Critically, in making such a determination, the MassDEP “shall consider existing public health or environmental standards where applicable or suitably analogous . . .”

Since the definition of “permanent solution” depends upon a determination of whether or not a significant risk exists based upon “existing public health or environmental standards,” it seems quite clear that the legislature intended to provide an exemption from liability under c. 21E to persons if they properly rely upon “existing” standards, and to protect them against reopening of liability based upon new standards that may be adopted by later regulatory changes.

Does the MCP contain a backdoor mechanism whereby closed sites must be reopened by responsible parties who would otherwise be exempt from liability because they properly achieved a permanent solution?  40.0137 of the MCP requires a new release notification for an already closed site (and therefore, reopening of a site) under the following circumstances: (1) changes in activities, uses or exposures at the disposal site; or (2) the presence of such oil and/or hazardous material would negate or change prior risk determinations or statements were that presence taken into account in the preparation of the permanent solution.  Neither of these two provisions for new notification appears to apply based merely upon promulgation of a new standard.  The first only requires notification at a closed site if the exposure scenario changes. Under the second, the promulgation of a later lower risk based standard would not “negate or change the determinations or statements” in the permanent solution because the known concentrations met the existing risk based standard when the permanent solution (or RAO) was filed.  There is no other MCP provision that expressly requires a responsible party to give notice or take response actions merely as a result of a later published risk threshold.

Unfortunately, the MassDEP takes the position that even though notification and compliance with the MCP may not be required for some sites, “under 310 CMR 40.0370 appropriate steps must be taken at these sites to eliminate or mitigate risks, if necessary, though these actions do not usually require notification to or approval by the Department.”  40.0370 provides that “(1) response actions shall be undertaken for releases or threats of release of oil and/or hazardous material that do not require notification under 310 CMR 40.0300 if the releases or threats of release pose a significant risk to health, safety, public welfare, or the environment, as described in 310 CMR 40.0900.” There is no time limit on this provision, i.e. it appears to be what my law professor called a “springing” provision, waiting to spring up when least expected.

Thus, read literally, the MCP is a Möbius loop. Despite the statute’s liability endpoint, under the MCP “once a disposal site, always a disposal site.” Like the tar baby, under the MCP a site owner will never be able to shake off the label and attendant potential exposure.

Let’s review the bidding, at the outset, if notification is required, the responsible party must perform response actions in accordance with the MCP until he or she achieves and properly documents that a condition of no significant risk has been achieved.  To do this, the responsible party would compare site contamination levels to existing standards to demonstrate the level of risk.  By necessity, the responsible party would rely on the standards then in existence.  If the responsible party demonstrates a condition of no significant risk, he or she may close out the site under a permanent solution and becomes exempt from liability under the statute.  At least theoretically, if at a later time there is a change in the relevant standard which the site does not meet, under Section 40.0370 the responsible party would be required to perform a new risk assessment using the newly existing standards, and if the site posed a significant risk, perform additional response actions to eliminate that risk.  Thus, the MCP appears to leave responsible parties permanently exposed to the requirement to take further response actions under 40.0370, and appears to require a continuous reassessment of risk posed by the site conditions, regardless of prior closure.  How the MassDEP would actually enforce such a requirement remains subject to significant question, especially since, under the statute, the responsible party is “exempt from liability.”

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