NEWS

Winter 2020 Firm Activities and Successes

John Shea participated in the October 24, 2019 Boston Harbor Regional Coastal Resiliency Conference, “Keeping the Lights On and the Water Out for 100 Years or More” on the use of layered defenses for protection from flooding due to sea level rise and storm surge.  He also participated in the October 25, 2019 New England Water Works Association (“NEWWA”) program “Success in the Face of Challenges.”  He spoke at the December 10, 2019 NEWWA program “PFAS in Drinking Water: Tools for Water Utilities to Address an Emerging Issue” on “What If PFAS Happens to Us?  Legal Aspects and Funding Sources.”

Tom Mackie moderated the panel of industry leaders discussing challenges posed by the lack of regional solid waste disposal capacity at the EBC’s March Talking Trash program, including Toni King of Casella, John Farese of Wheelabrator, Jim Belden of Covanta, Scott Lemay of United Material Management and Steve Poggi of Waste Management.

As a member of the Massachusetts Water Works Association (“MWWA”) Legislative Committee, John assisted in preparing the July 18, 2019 Comments on MassDEP’s Proposed Changes to the Massachusetts Contingency Plan and a Proposed Maximum Contaminant Level (“MCL”) for PFAS compounds in drinking water.  We drew upon the expertise of Green Toxicology, LLC and Sanborn Head & Associates.

John participated in the November 20, 2019 BU Pardee Center seminar, “The Pentagon, Greenhouse Gases & Climate Change” as part of the Costs of War project.  The DOD has the world’s largest carbon footprint due primarily to fuel use in the counter-terrorism wars.  DOD views climate change and related resource scarcity (water, food, oil and refugee migrations) as leading to more conflicts and war, and believes the best response to climate change is to be ready for the inevitable conflicts. 

A key component of the firm’s winning argument in an important case on the statutory interpretation of the Water Management Act was the legislative history of the WMA.  Working with the reference librarian in the State House Archives, Gail Hire reviewed the voluminous collection of former state Senator Carol Amick.  Sen. Amick was at the epicenter of the debate on the construction of the WMA and her papers provided a good roadmap to understand the evolution of the legislature’s thinking and the impetus behind the creation of different classes of uses through registrations and permits.

Peter was the organizing chair for an EBC program on PFAS in Drinking Water on November 5, 2019.  Peter also moderated the discussion among the presenters, Laura Green of Green Toxicology, LLC, Rob Little of Woodard & Curran, Brandon Kernen of NH DES, and Kathy Baskin, the MassDEP Assistant Commissioner for the Bureau of Water Resources.

Tom and Gail have been very active in supporting a national client’s tax equity investment and a lender’s associated financing of a large portfolio of solar projects throughout the Commonwealth.  From local building permits to Statements of Qualifications under the DOER’s SMART program they have performed legal due diligence on literally hundreds of permits and approvals for these important large scale renewable energy projects. 

John lectured on “Understanding Federal and Massachusetts Wetlands Law: Permitting and Appellate Processes” on December 5, 2019 for Half Moon Education, Inc. 

Peter Durning moderated the panel discussion at EBC’s Meeting with MassDEP Regional Solid Waste Section Chiefs, including Greg Cooper, the MassDEP Director of the Hazardous and Solid Waste Division of the Bureau of Air & Waste, and the four regional Solid Waste Section Chiefs, Mark Fairbrother (NERO), Mark Dakers (SERO), Jim McQuade (CERO) and Dan Hall (WERO).

John attended the “Sustainable Space, Sustainable Earth” Symposium sponsored by the Smithsonian and Framingham State University in conjunction with the “Moon Landing in Context Project” on December 6, 2019.  He was part of a colloquy on a Legal System for Near Earth and Lunar Commercial Users. 

 

Peter also moderated a panel on waste management strategies in the construction industry during the EBC Solid Waste Committee’s C&D Summit on January 30, 2020, and gave a presentation on emerging litigation issues related to PFAS contamination and regulations for the Mass Water Works Association on February 11, 2020.


John Shea again moderated the annual Environmental Business Council Series with MassDEP Leadership: Commissioner Marty Suuberg and the Southeast Regional Office Leadership Team.  At the October 2, 2019 program, John introduced and questioned Commissioner Suuberg, Regional Director Millie Garcia-Serrano, and Deputy Regional Directors David Johnston, Gerard Martin, Seth Pickering and Jennifer Viveiros, and Courtney Rocha, the new SERO Climate Coordinator.  The Commissioner explained staffing reassignments, recalls to active duty for critical programs (Ch. 91), and new hires in response to the “graying” of MassDEP; proposed changes to the Massachusetts Contingency Plan to set cleanup standards and to the Drinking Water regulations to set Maximum Contaminant Levels for six PFAS compounds; and the draft Solid Waste Master Plan for 2020-30 to address the loss of in-state disposal capacity and aspirations to increase recycling and reuse. 

Millie used recent examples to illustrate how SERO is moving forward through transformational leadership; is delivering on mission and core program goals in permitting, compliance and enforcement; and is promoting the energy-environment nexus for battery storage facilities and for offshore wind support.  Gerard explained how MassDEP is addressing PFAS through a collaboration of the Waste Site Cleanup and Drinking Water Programs, and highlighted PFAS work at Joint Base Cape Cod, Barnstable County Fire and Rescue Training Academy, the Barnstable, Martha’s Vineyard, Nantucket, and Plymouth Airports, and five municipal water supplies.  Seth encouraged the proper use of local zoning to bolster MassDEP’s enforcement cases on noise, odor and visible emissions from industrial and solid waste facilities, and wind turbines.  Jennifer explained how SERO is building and retaining a sustainable work-force, and upgrading vehicles and field equipment.  She proudly bragged about the commitment of SERO staff for voluntary emergency management assistance deployments to hurricane devastated locations.  Courtney explained the Municipal Vulnerability Preparedness Program’s support of municipal planning and construction in response to increasing threats from climate change.  Dave Johnson wowed us with his work on the decommissioning of the Pilgrim Nuclear Station, and the indefinite on-site management for 47 years of spent nuclear fuel.  DJ stole the show by circulating through the audience a nuclear fuel pellet, with a belated warning not to hold it too long!

 

 

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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Mackie Shea Durning PC secures an important ruling on the Water Management Act

Town of Concord’s water supply at Nagog Pond.

On October 11, 2019, Judge Jennifer S.D. Roberts of the Massachusetts Land Court issued a Memorandum of Decision granting summary judgment to the Town of Concord resolving a dispute among  Littleton, Acton and Concord regarding which statutory authority governed the water withdrawal rights from Nagog Pond.

Nagog Pond has  been a source of public drinking water for Concord since it took the pond via eminent domain in 1909.  Littleton and Acton argued that a provision in an 1884 Act, which gave Concord rights to Nagog Pond, reserved withdrawal rights for the two towns where the pond is located. Concord argued its withdrawal rights were superior to any provisions of the 1884 Act, because it held a Registration under the 1985 Water Management Act, which grandfathered qualified existing water withdrawal rights.

Mackie Shea Durning PC attorneys Peter Durning, John Shea, and Gail Magenau Hire compiled an analysis of the legislative history for the Water Management Act and provided a statutory interpretation of the language of the statute to demonstrate that the Legislature intended to repeal prior special acts, like the 1884 Act, as it set up a new regulatory regime under the Water Management Act.

In her written Decision, Judge Roberts confirmed that the Water Management Act was “a comprehensive statute that was designed to address a state-wide problem – the preservation and allocation of water resources” without regard for municipal or other political boundaries.  Judge Roberts noted that in its deliberations on the scope of the Water Management Act, the Legislature was concerned with pre-existing rights created by approximately 650 prior special acts regarding water withdrawals, like the 1884 Act. Judge Roberts affirmed that the legislature “chose to address that concern by registering existing water withdrawals and continuing those registrations, upon timely renewal, ‘forever’.”  Based on the language of the two statutes, Judge Roberts concluded the “1884 Act is repugnant to and inconsistent with” the Water Management Act and that any rights granted to Littleton and Acton under the 1884 Act were extinguished.

The Land Court’s Decision to uphold Concord’s Registration to withdraw water from Nagog Pond will allow Concord’s investment in the construction of a new state-of-the-art water treatment facility to go forward without a lingering concern that Littleton and Acton might attempt to usurp Concord’s Registration which perfected and protected its withdrawal rights at Nagog Pond.

Mackie and Shea in Best Lawyers

Mackie Shea, PC, the Boston boutique law firm, is proud to announce that  Thomas A. Mackie and John F. Shea have been selected by Best Lawyers® (2020 edition) for environmental law and environmental litigation.  Tom and John each have been recognized for over ten years.

Best Lawyers® is the oldest and most respected publication in the legal profession.  Recognition is widely regarded by both clients and lawyers as a significant honor conferred on a lawyer by his or her peers.  Listing is based entirely on a transparent survey process evaluating professional abilities and the quality of legal services.

Mackie Shea, PC concentrates in environmental, land use law, and related litigation.  www.mackieshea.com

The PFAS Zone

Picture if you will, a grey Friday morning in New England. While the mist lifts from the steeple just off the town green and kids shuffle to school bundled against the chill, during this inauspicious dawn on April 19, 2019, Massachusetts crossed over into the “PFAS Zone.” 

On that date, the Massachusetts Department of Environmental Protection (“MassDEP”) unveiled proposed changes to regulatory standards for certain hazardous materials in the state’s rulebook for conducting response actions to remediate contamination, the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”). 

The draft revisions address a class of per- and polyfluorinated compounds commonly referred to as PFAS. These synthetic compounds are valuable in industrial and commercial applications for their hydrophobic characteristics. They are used in stain-resistant carpets and upholstery, medical instrumentation, weatherproofing fabrics, car wash waxes, firefighting foams, and microwavable popcorn bags. It is estimated that PFAS is present in the bodies of 98% of the US population.

MassDEP’s proposal sets a reportable concentration and clean-up standards for PFAS in soil and groundwater. Significantly, the GW-1 cleanup standard for groundwater, which may contribute to drinking water, is just 20 parts per trillion (ppt) for the aggregate concentration of six different PFAS compounds. This value sets the baseline level that the state believes is acceptable to persist in the environment without causing an adverse impact on public health. Thus, even though the proposed cleanup standard in the MCP is not an express regulation on drinking water standards, in effect, the regulatory package sets forth the state’s proposed conclusion with respect to the acceptable amount of PFAS in drinking water that is protective of public health.

At the same time that the state released the draft regulations for the MCP, MassDEP also revealed its intention to set a maximum concentration limit (“MCL”) for PFAS in the regulations for drinking water during the winter of 2019-2020. Though MassDEP has just started a stakeholder process to receive feedback on an appropriate MCL for drinking water, it is very likely that MassDEP will propose 20 ppt as the maximum acceptable level of PFAS in drinking water as that process proceeds.

Bending the dimension of time, just days before making its public pronouncements unveiling its proposed rulemaking, MassDEP sent letters directly to water suppliers disclosing the formal start of the MCP comment period. While this communication revealed the proposed lower standards for protecting public health, it also reinforced the fact that, until the MCL has been established as a formal regulatory requirement, public water suppliers have no legal obligation to comply with the 20 ppt limitation on PFAS in drinking water. In this manner, public water suppliers were given the burden of deciding whether to comply with the most stringent proposed PFAS limit as soon as the proposed rule was announced, or to continue to plan and budget for compliance with the legal and regulatory requirements.

Indeed, while the proposed cleanup value for PFAS is a compelling basis for protecting public health, the press release from MassDEP only indicates the start of a public comment period. During that time, MassDEP is going to hold four public meetings – one in each of the four MassDEP regions. (See May 3, 2019 Public Notice for Revised meeting dates.) The Department will also accept written public comments as part of the administrative review process. Not only is the state’s expression of the “safe” level of PFAS in drinking water not yet law, it is likely that public comments will argue that such a stringent value is not necessary to avoid health impacts. In the end, MassDEP may reevaluate its conclusions about the appropriate PFAS level to protect public health.

The scientific community has not reached a consensus on the true impact of PFAS on human health. While there have been documented health impacts from the C8 Health Project funded by DuPont in the wake of major PFAS exposure in West Virginia, the root basis for the movement pushing the “tolerable” levels of PFAS lower and lower are predominantly rodent studies which do not necessarily correlate to the physiological conditions in humans. Much of the caution behind the regulatory fervor is driven by the fact that PFAS in pregnant women can cross the placenta barrier into embryos and through breast milk to infants. The possibility of PFAS being present in developing cells and the fear of complications stemming from these man made compounds in the body, are the main drivers of the health risk assessments. While these possibilities are concerning, it is unclear whether the potential health impacts to the sensitive populations are best addressed by public water system regulations.

Roughly, one week after the press release from MassDEP, US EPA released interim recommendations on PFAS. EPA issued guidance that “[i]n situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFAS over 70 ppt.” Like the limbo of the Massachusetts regulatory rulemaking process, this communication from EPA is not sufficiently instructive. The phrase “responsible parties will…” is not a clear mandate to prompt action to preserve and protect public health. 

Furthermore, EPA’s announcement specifically acknowledges, “toxicity information is being developed on additional PFAS and [EPA] will consider that information as it becomes available.” While the regulator’s candor is appreciated, this statement from EPA undermines the conclusion that water suppliers and PRPs must act expeditiously to avoid providing water with greater than 70 ppt of PFOA and PFOS – let alone over MassDEP’s expected combined standard of 20 ppt, because the toxicity information is still being developed and analyzed. 

Though by operation of law states can set more stringent contaminant levels than the federal government, for public water suppliers in Massachusetts, the decision by EPA to set 70 ppt as protective of public health contravenes MassDEP’s drive to adopt a much lower standard. Another confounding factor is that, despite the considerable attention on this issue, there is no consensus among the New England states on the proper limit. The differences stem from different assumptions made by the individual states’ health risk assessors, like the target human subject (VT- breastfeeding infants; NH – lactating female) and the volume of water the target subjects will consume in an average day.

Another significant difference between EPA’s approach and the regulations proposed by Massachusetts, is the number of regulated compounds. EPA’s health advisory only addresses PFOA and PFOS, while the current health advisory in Massachusetts requires the monitoring of five PFAS compounds and the proposed regulations set 20 ppt as the limit for a combined total of six compounds. The so-called “Massachusetts 6” consists of PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly-added PFDA (Perfluorodecanoic Acid). This regulatory approach adds yet another dimension to the PFAS Zone in Massachusetts, because it requires specialized testing, which may not be readily available from all vendors, and will certainly drive up monitoring and compliance costs within Massachusetts.

As with many of the scenarios in Rod Sterling’s harrowing TV series, a critical dimension of the PFAS Zone is the role of public perception. For the public at large, these disparate data points among states and the federal government and between current and proposed regulatory values sew confusion and concern. Members of the public who learn Massachusetts intends to lower its remedial standard for groundwater that may contribute to public drinking water resources to 20 ppt, would have an understandable basis to demand that their local water supplier must meet the proposed standard to protect public health today. While there is no legal obligation for water suppliers to meet the predicted 20 ppt standard, public opinion and MassDEP prodding is forcing public water suppliers with reported concentrations over 20 ppt to plan for the design and construction of expensive PFAS treatment systems.

Of course, no regulator or public water supply professional can ignore the signs indicating a public health crisis may happen on their watch.  The experience in Flint, Michigan is still seared in the minds of people who make frontline decisions on water quality and acceptable health standards. No one wants to be the next Flint. Perhaps justly, the lesson from Flint is to be proactive and ward off accusations of complacency when there is evidence of the potential for negative public health impacts from PFAS.

For public water suppliers in Massachusetts, there is no comfort in this Twilight Zone of guidance and proposed regulation. Water supply professionals must continue the daily vigilance to ensure clean and safe water. They must grapple with the fear that PFAS and other new synthetic “invaders” may appear that will require expensive cutting edge treatment. Emerging contaminants are causing all of us to finally recognize the true cost of drinking water.

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Environmental Law Update – Spring 2019

Emerging Contaminants: MassDEP has proposed reportable concentrations and clean-up standards for perfluoroalkyl compounds in the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (MCP).  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall, 2019.

Climate Change: Following up on an April, 2018 policy announcement, the EPA proposes to adopt regulations that would treat carbon dioxide emissions from power plants using managed forest biomass as carbon neutral.  

Renewable Energy: The Massachusetts Department of Energy Resources (DOER) has proposed regulations to revise the Class I and Class II Renewable Energy Portfolio Standard (RPS) regulations, including revisions to the efficiency standard for certain woody biomass to qualify for Class 1 Renewable Energy Certificates (RECs).

Solid Waste:  During 2019, the MassDEP will continue to hold Solid Waste Advisory Committee meetings to arrive at a draft 2020 Solid Waste Master Plan.  Subcommittees that will also be meeting include the source reduction, organics and C&D Subcommittees. In this connection, in February MSW Consultants provided the MassDEP with its final Massachusetts Materials Management Capacity Study which is intended to inform the development of the 2020 Master Plan.

NPDES: In April, the EPA issued an Interpretative Statement on Application of Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants from a Point Source to Groundwater, in which the Agency concludes “that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage. regardless of a hydrologic connection between the groundwater and jurisdictional surface water.” It will remain to be seen whether or not this interpretation will quell the conflict among the federal Circuits over the issue, highlighted last September when the Massachusetts District Court dismissed a citizen’s suit alleging violations of the NPDES program by Casella Waste Systems’ discharge of contamination to the groundwater at the Southbridge landfill in Toxics Action Center, et. al. v. Casella Waste Systems, Inc., et. al.  Hopefully, the United States Supreme Court will answer the question of NPDES jurisdiction when it takes up County of Maui, HI v. Hawaii Wildlife Fund on appeal from a Ninth Circuit decision extending jurisdiction to discharges to groundwater. 

Drought Management Plan

Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe.  Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies.  I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report.  I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.

If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission.  Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches.  There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9).  Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise.  However, large storms do not mean significant groundwater recharge or steady stream flows.  They mostly result in localized flooding and rapid stormwater flows.

Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.”  The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies.  I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.

Great Pond in Jan. 2017. Photo by Ed Baker

The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000.  It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013.  During the 2016-17 drought, the 2013 DMP was used and lessons learned.  EEA and MEMA are responsible for coordinating response efforts and communications with the public.  The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials.  The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.

MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection.  MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA.  Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program.  In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).

The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP.  There is no one-size-fits-all Drought Plan.  Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals.  Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems.  The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.

The DMP is considered to be a living document to be updated and revised based on experiences.  The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.