NEWS

EBC 25th Annual EBEE Awards

On June 27, 2018, the firm was pleased to sponsor and participate in the Environmental Business Council of New England’s 25th Annual EBEE Awards.  The event was our Managing Shareholder, Tom Mackie’s, last hurrah as the Chair of the EBC.  Tom’s tenure as Chair deepened the firm’s ties to the EBC and the environmental community.  During this time as Chair, the EBC significantly increased the number of programs and overall attendance at EBC events.

Tom Mackie recognized the 2017 EBC Ascending Leaders, presented the Paul G. Keogh award to MassDEP Commissioner Martin Suuberg.  Tom also received the Steve G. Lewis Merit-Award for Service to the Environmental Industry.

Congratulations to all of the impressive 2018 EBEE Award Recipients!

Thank you to the EBC staff, Dan, Ann, and Jackson, for an excellent event.

Posted on Format GalleryIn Categories Firm Successes

“SUPERFUND IS SEXY AGAIN.”

According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations.  These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations.  So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.

The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants.  They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks.  Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses.   While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.

One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications.  PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used.   In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations.  For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).

Another emerging contaminant is 1,4-dioxane.  1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents.  Because of their widespread consumer use, these compounds are found just about everywhere.  For example, 1,4-dioxane can be found in private septic systems and associated groundwater.  The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.

To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act.  Thus, as far as the federal government is concerned, there is no enforceable standard.  However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure.  For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory.  The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.

The law and regulations governing site assessments and remediation for these contaminants is still “emerging.”  While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard.  In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program.  But this Interim Guidance does not establish clear enforceable standards.  Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant.  Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.

Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site.  According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS.  She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action.  She indicated that there has been some discord between the federal and state governments over this issue.

PFAS can be in solid waste.  The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste.  Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs.  Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility).  This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.

To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air.  A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.

These emerging contaminants present a real challenge on a number of fronts.  Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment.  Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols.  Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.

Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants.  Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.

 

Firm Activities – Summer 2018

Peter Durning as co-chair of the Boston Bar Association Energy and Environmental Section, and Tom Mackie, as chair of the Environmental Business Council of New England, were honored to introduce the new EPA Regional Administrator, Alexandra Dunn, at a joint BBA/EBC program in February.

In January, Tom mimicked David Frost when he interviewed EOEEA Secretary Matthew Beaton for the second annual update from the Secretary.  Secretary Beaton spoke enthusiastically about the Department of Energy Resources’ impending “tremendous procurement” of renewable hydro and other Class 1 renewable energy and development of 1600 MWs of new off shore wind.

In July, Tom and Gretchen Carey, Recycling and Organics Coordinator for Republic Services, will Co-Chair an EBC Solid Waste Program on Innovative Solid Waste Management Technologies. Meanwhile Tom continues to Chair a series of EBC Solid Waste Management Committee Stakeholder meetings and participate as a Member of the MassDEP Solid Waste Advisory Committee in preparation for the MassDEP’s upcoming review of the Solid Waste Master Plan.

Peter was on a panel discussing Environmental Due Diligence for a Boston Bar Association CLE program in April.

At its annual meeting, the Charles River Watershed Association gave its Clean Charles Award to Boston Duck Tours and its CEO Cindy Brown.  During the ceremony, CRWA Executive Director Bob Zimmerman (now retired) and Cindy acknowledged John Shea for his political acumen and legal skills during the permitting of the iconic land and water tour.

Firm Successes – Summer 2018

Mackie Shea has again been recognized by Chambers USA 2018 as among the best law firms for Environmental Law in Boston.  In April Tom Mackie and John Shea were selected by Best Lawyers of America in its 2018 Edition of New England’s Best Lawyers for Environmental Law and Environmental Litigation.  The Firm was ranked in Best Law Firms as Tier 1 Boston and Tier 2 nationally.  Best Law Firms is the oldest and most respected peer- review publication in the legal profession for “legal expertise, ethics and professionalism of the highest caliber.”

Following an appeal to the Land Court, Peter Durning secured a Special Permit from the Acton Board of Selectmen for the Town of Concord’s new surface water treatment plant at Nagog Pond.  For other clients, Peter also settled numerous enforcement matters with the MassDEP and the Attorney General’s office alleging solid waste and wetlands protections violations.   

On June 27, Tom Mackie will be awarded the Stephen G. Lewis Environmental-Energy Merit Award for Service to the Environmental Industry at the Environmental Business Council of New England 25 Annual EBEE Awards Dinner.  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 industry in New England.

Tom obtained a major modification to site assignment for a waste to energy plant to implement a Net Recycling project to increase the amount of recyclables the plant will recover.

John Shea secured local approval for a large dock and pier in Marlblehead, and averted “Pier Wars” with a neighbor by brokering a shared pier and dock project with MassDEP concurrence.

Athletic Endeavors

Not satisfied with merely competing in the court room, Tom Mackie and Peter Durning have been competing in triathlons and road races for the past several years.

Peter has done the Boston Tri for the past three years and participates in several running events during the year, including the Yankee Homecoming 10 Miler in Newburyport and the Stone Cat Trail Marathon in Willowdale State Park.

Tom and his son, Sam [pictured], have done more than just complete Tris – they are on a winning streak.   In addition to consistently high finishes in the overall standings, Sam won his age group at the 2017 Cooperstown, Lake Waramaug, Harvest and Sharon triathlons and the 2018 Polar Bear Triathlon.  Tom won his age group at the 2017 Sharon and 2018 Polar Bear and Cooperstown triathlons.

Not one to take a season off, Tom’s Wachusett Night League ski team, Haddad Auto Detail, won the 2018 Good Race!

Chambers Commentary on Mackie Shea, PC

Chambers & Partners ranked Mackie Shea, PC in Band 3 for Massachusetts Environmental Law.  Here is the Chambers Commentary based on their research:

What the team is known for Respected practice, noted for its litigation prowess and representations before state and federal regulatory agencies. Noted for its effective handling of licensing disputes. Broad experience in matters such as solid waste management, renewable energy plants, and residential and commercial developments.

Strengths Interviewees comment: “The team are very knowledgeable and willing to dig into the details to achieve the correct answer.”

One client remarks: “They are smart, responsive and successful.”

Work highlights Acted for Artis Senior Living Memory Care Residences in its negotiation of an Administrative Consent Order for restoration and mitigation of historically filled wetlands. Also assisted the client in securing agency approval for a RAM Plan for the remediation of soil and groundwater during construction.

Represented Prolerized New England Company in a range of environmental compliance matters which included overseeing the assessment and cleanup of an offsite waste disposal.

Notable practitioners

Thomas Mackie has a broad environmental practice encompassing experience across a wide range of complex matters including hazardous waste, cost recovery, and clean contamination issues. One client reports: Tom is outstanding: He is very smart, well focused and understands the multiple interactions of the complicated Massachusetts regulatory environment.”

John Shea is a highly experienced environmental and land use attorney. He has significant expertise across hazardous waste, water and wetland issues and brownfield remediation.

Peter Durning has notable experience handling a wide range of environmental matters. He is skilled across land use, contaminated property and permitting issues. He is also experienced in enforcement disputes.

Posted on In Categories Firm Successes

Tom Mackie to Receive Award from EBC

BTS BKN 2015

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.

Posted on In Categories Firm ActivitiesTags: Tags

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.

Posted on In Categories Client AdvisoryTags: Tags

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.