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Tom Mackie to Receive Award from EBC

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The Environmental Business Council of New England, Inc. (EBC) recently announced that Tom Mackie will receive the Stephen G. Lewis Environmental-Energy Merit Award for Service to the Environmental Industry.  Tom is the outgoing chair of the EBC Board of Directors and the Managing Shareholder at Mackie Shea, P.C.  The Stephen G. Lewis Award is given in recognition of meritorious service, leadership and dedication to improving the quality of the environment and to the development of the environmental-energy industry in New England.  The award will be presented at the 25th Annual EBEE Awards on June 27, 2018.

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Does China Sword Trigger a Force Majeure Clause?

An April 2015 NW&RA/SWANA Joint Advisory presciently counselled “allowances for changes in the contract over time due to circumstances such as: acts of God, changes in market conditions (including but not limited to lack of commercially reasonable market availability for processed recyclables . . . and changes in law . . .). ”  Similarly, the MassDEP’s 1997 recycling Contract Template contains optional language requiring the hauler to provide “alternative recycling services and compensation to the municipality” if the contractor fails to accept recyclables because of facility or service failures “not resulting from a force majeure event.” Likewise, a municipal recycling collection/processing contract that we negotiated for a hauler in 2013 had a robust force majeure clause that excused defaults based upon “acts of government or regulatory authorities”. .  . “which substantially affect, impact or impede the Contractor’s or the Town’s operations.”

Whether you are a municipality or commercial customer reaping the benefits, or a hauler or processor whose contract is upside down, it behooves you to look into the possibility that the China Sword standard excuses performance of the contract as a force majeure event, change in law or perhaps under the contract doctrines of impossibility or frustration of purpose.

Without going into great legal detail, the bottom line is that a broadly drafted force majeure clause such as the one quoted above may excuse a hauler or processor from performance of its contract.  Under the example above, as an official standard of the Chinese Ministry of Environmental Protection, the China Sword standard is an act “of government or regulatory authorit[y]” that should qualify as a force majeure event.  If the new standard “substantially affect(s), impact(s) or impede(s) the Contractor’s operations,” the contractor’s failure to perform should be excused.  Alternatively, parties to longer term contracts may have a separate change in law clause that will require them to adjust or renegotiate price.

Absent either of these types of clauses, the parties may need to rely upon legal theories of impossibility or frustration of purpose to justify a renegotiation. However, it is worth noting that the Massachusetts courts do not favor these contract defenses where the issue is simply a change in price.  For example, in a construction dispute involving a spike in the price of steel, Judge Gordon of the Superior Court found no excuse for performance and noted that “unchanging prices and other cost-impacting conditions cannot realistically be considered implied assumptions of contracts at the time of execution, and, therefore, performance will not be excused under the doctrine of frustration of purpose merely because prices have fluctuated.”  Fargo Management LLC v. City of Worcester, Memorandum of Decision and Order on Summary Judgment, C.A. No. 2012-1028C (Worc. 2014).

For questions, call or email Tom Mackie.

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BBA and EBC welcome the new EPA Regional Administrator Alexandra Dunn

Tom Mackie and Peter Durning were honored to be a part of the Boston Bar Association and Environmental Business Council of New England’s co-sponsored program on February 15, 2018 welcoming the new EPA Regional Administrator, Alexandra Dunn.

Tom, Chair of the EBC, gave opening remarks welcoming over 200 guests from the legal and environmental consulting community to the event.

Peter, the Co-Chair of the BBA’s Energy and Environmental Law Section, provided closing remarks and a sincere thank you to Regional Administrator Dunn, following a 40-minute presentation and a robust question and answer period.

In her speech, Alex Dunn stressed the need to address core water quality concerns by focusing on nutrients in stormwater, stormwater runoff, and water infrastructure projects.  She also outlined other initiatives for her tenure as Regional Administrator, including emerging contaminants, environmental justice, interstate air shed issues, and finally closing out and potentially redeveloping the remaining Superfund sites in New England.

Appeals Court Clarifies “Common Scheme” Restrictions

Earlier this month, the Appeals Court decided Berger v. 2 Wyndcliff, LLC, a dispute over conflicting interpretations of how to extend so called “common scheme” restrictions on land use.  G.L. c. 184, §. 27.  The restriction in this case originated in 1980 when a property owner executed an agreement of “protective covenants and easements” for the benefit of future owners in conjunction with subdividing her property.  The agreement restricted development (among other things, only one single-family dwelling was allowed per lot), and was to run with the land and bind the parties for 30 years from the date of recording.  These were common scheme restrictions that applied to four or more contiguous parcels.

Future owners later amended the agreement, with one amendment by two-thirds of the owners purportedly allowing extensions of the restrictions beyond 30 years.  Neighbors ultimately sued each other, disputing whether these restrictions were extended or had expired in 2010.  The Appeals Court held that, because the instrument originally creating the restriction did not allow extensions, any such amendment violated G.L. c. 184, § 27(b).  That law allows common scheme restrictions to be extended beyond 30 years for 20 years at a time under certain conditions, including that the imposing instrument allowed for extensions.  Other (non-common scheme) restrictions may be extended without regard to the language of the original instrument imposing the restriction.

In deciding an issue not reached by the Land Court below, this case highlights a difference between common scheme restrictions and non-common scheme restrictions.  The judge below had concluded that the amendments made the restrictions unlimited as to time and, thus, they expired 30 years from their creation.  See G.L. c. 184, §. 23. He did not reach the issue of whether these parties to common scheme restrictions had properly changed the restrictions’ duration.  In the seminal 2001 case Stop & Shop  v. Urstadt Biddle Properties, the SJC held that parties (two abutting commercial landowners) to a land use restriction agreement could remove a fifty-year prohibition on certain uses.  Removing the time limit made this restriction “unlimited as to time,” invoking G.L. c. 184, §23 and putting the property in a situation where the restriction expired in 30 years.  But that was not a common scheme restriction, to which we now know that slightly different rules apply.

This result is logical — common scheme restrictions apply to a group of neighbors, who may have had limited or no bargaining power when acquiring their properties.  The initial developer sets the common scheme restrictions, giving those coming into possession notice of the unique qualities and restrictions of the neighborhood.  In contrast, it is more equitable for two abutters (such as the owners of one burdened and one benefited parcel) to freely bargain for and enforce lengthy, non-common scheme land use restrictions.  As the Appeals Court stated, “the mechanism for the extension of restrictive covenants cannot be added by a later vote of less than one hundred percent of all property owners in the common scheme.”  It should be easier for two neighbors to agree on land use than it would be for the four or more neighbors in a common scheme.

For questions, call or email Gail Magenau Hire.

 

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”