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Firm Successes

Gail Magenau Hire’s parents, Tom and Mary Beth Magenau, won the 2019 National Wetlands Landowner Stewardship Award from the Environmental Law Institute for wetlands restoration work at their Tri-State Marine (TSM) dealership in Deale, Maryland.  For more than 50 years, the Magenaus have combined business goals with sustainable practices to protect the Chesapeake Bay.  Their recently completed, state-of-the-art, green infrastructure project provides habitat and food for wildlife and protects Herring Bay by filtering runoff to one of its tributaries.  From humble beginnings in 1965, TSM has grown into a successful, full service marine business that sells and services powerboats up to 37 ft.  Starting in 1999, TSM has funded complex permitting and specific land acquisitions, including placement of 40 acres into permanent conservation that led to this project’s feasibility.  The Executive Director of the Arundel Rivers Federation described the project as “the first public private partnership for storm water management in South Anne Arundel County and will prevent nearly 10,000 pounds of sediment to annually flow into the nearby creek.”  Anne Arundel County’s incentive program allows a fifty percent reduction in stormwater fees for such voluntary and sustainably-managed stormwater projects.  Other benefits included construction jobs and student and community group engagement. 

The firm and its three shareholders were recognized again as one of the top environmental law firms in Massachusetts in the 2019 edition of Chambers USA Guide.  According to Chambers, the firm is known for its “respected practice, its litigation prowess and representation before state and federal agencies, its effective handling of licensing disputes, (and) broad experience in matters such as solid waste management, renewable energy plants, and residential and commercial developments.” Clients state the Mackie Shea attorneys “understand the Massachusetts regulations extremely well and have the ability to strategize in the context of the state and local political realities.” The firm’s lawyers are “professional, responsive, knowledgeable and skilled.”

Peter Durning prevailed on motions in the Supreme Judicial Court and the Land Court on a water rights dispute between two municipalities.

John Shea negotiated an Administrative Consent Order with Penalty (ACOP) with MassDEP for a national home builder.

Tom Mackie negotiated an ACOP with MassDEP for a commercial wastewater treatment facility.

Since our most recent newsletter, Tom represented clients in solid waste site assignment hearings resulting in modification to an existing site assignment allowing the vertical expansion of an ash landfill; a site assignment for a new rail served handling facility, and modification to an existing site assignment allowing a construction and demolition debris handling facility to accept municipal solid waste. 

 

Associate Job Posting

Mackie Shea Durning, PC seeks an associate with significant experience in environmental litigation and a knowledge of hazardous waste, wetlands, MEPA and solid waste law, and zoning law.

We expect the attorney will work with a high degree of independence under the mentorship of the partners. There will be a significant amount of client contact, frequent direct dealings with opposing counsel and government officials, as well as public hearing attendance (often at night). We will rely on the attorney to handle challenging issues.

In sum, we seek someone who can make tough judgments and has the skills to handle components of litigation or business transactions with minimal guidance and supervision. People who are competitive, self-reliant, and highly motivated are likely to be successful with us.

            General Qualifications

  • 6 years post-law school preferred (3 years minimum)
  • top quarter of law school class
  • excellent writing skills

            Environmental Experience

  • private 21E cost recovery and other disputes
  • government enforcement
  • administrative law and appeals
  • zoning and environmental permitting and appeals

            Litigation Experience

  • conducted numerous depositions
  • prepared memoranda of law and argued dispositive motions
  • conducted all aspects of discovery independently
  • participated in trials and adjudicatory proceedings

Submit letter of interest and resume to: pdurning@mackieshea.com

*****

Mackie Shea Durning, PC is committed to creating a diverse work environment. All qualified applicants will receive consideration for employment without regard to religion, color, race, ethnicity, national origin, sex, sexual orientation, gender identity, marital status, age, disability, or military or veteran status.

Mackie Shea, PC Recognized Among Top Environmental Law Firms

Chambers & Partners ranked Mackie Shea, PC in Band 3 for the 2019 Massachusetts Environmental Law Rankings.  Here is the Chambers Commentary for Mackie Shea, PC 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. Clients include defense companies and municipalities.

Strengths:

Sources report: “The Mackie Shea team are professional, responsive, knowledgeable and skilled.”

Clients say: “They understand the Massachusetts regulations extremely well and have the ability to strategize in the context of the state and local political realities.”

An interviewee says: “They are one of the leading firms in New England with respect to solid waste matters.”

Work highlights:

Negotiated an Administrative Consent Order and suspended penalty, on behalf of Raytheon Company, to restore wetlands damaged in mitigating flood damage.

Notable practitioners:

Thomas Mackie is a strong choice of counsel for matters connected with solid waste, recycling and renewable energy. Sources consider Tom to be “the leading solid waste attorney in Massachusetts.”

According to sources, John Shea is “great at permitting disputes, as well as working effectively with regulators to reach a compromise.” His expertise covers wetlands, water, wildlife and hazardous waste laws.

Sources report Peter Durning “advocates for his clients very effectively.” He offers expertise in a multitude of environmental matters, including permitting issues and enforcement defense.

MassDEP Issues New Health Advisory for PFAS

On Thursday, April 18, 2019, MassDEP issued a set of proposed revisions to the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”), including modifications to various notification provisions, new adequately regulated provisions for disposal-sites with Radioactive Materials, and updated to Reportable Concentrations and numerical cleanup standards for certain chemicals.  The most controversial set of the proposed  MCP  revisions are the new proposed Reportable Concentrations and cleanup standards for a large class of synthetic chemical compounds commonly called PFAS.

Though PFAS are now banned from being used in manufacturing processes in the United States, they were used for decades in consumer products and industrial applications, because they are resistant to heat, water, and oil. These same traits that made these chemicals attractive options for stain-resistant upholstery, water-proof clothing, microwave popcorn bags, and fire-fighting foams have been associated with health effects when the substances accumulate in the human body through ingestion and exposure.

There is no nation-wide consensus on a safe level of exposure to PFAS. Several states have set regulatory levels below the current EPA Health Advisory level of 70 ppt for the sum of PFOA and PFOS.

MassDEP established an Office of Research and Standards Guideline (ORSG) of 70 parts per trillion (ppt) for the cumulative total of five particular PFAS compounds in June 2018.  MassDEP’s announcement on Thursday proposed a Method 1 GW-1 standard of just 20 ppt for an expanded set of six PFAS compounds, including: PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly added PFDA (Perfluorodecanoic Acid).

While the announcement is not formal change to the ORSG, the announcement from MassDEP states the proposed regulatory package, “reflects an approach that is concurrently being considered for a revised MassDEP ORSG (drinking water guideline) used to evaluate public water supplies.”

These draft regulations for changes to the MCP are subject to a notice and comment period.  MassDEP issued a Public Hearing Notice for four public hearing will be held in May.  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall 2019.

While these proposed changes to the MCP are proceeding through the administrative review process, MassDEP will be drafting a second regulatory reform package to set a Maximum Contaminant Level (MCL) for PFAS in the drinking water standards for public drinking water systems in 310 CMR 22.00.  MassDEP initiated the process for establishing a new MCL for drinking water by soliciting input from stakeholders.

The first meeting of MassDEP’s PFAS MCL stakeholder group was last Thursday, April 11, 2019 at MassDEP Headquarters in Boston. John Shea participated in the stakeholder meeting.  Based on the representations at the stakeholder meeting, MassDEP is planning to conclude the rule-making process and establish a formal MCL during the coming winter (2019-2020).  The intent is for the MCP and MCL process to be complimentary.

The evolving standards for regulating PFAS pose serious concerns for water suppliers, developers, industrial actors, and municipalities.  We will continue to track regulatory developments with PFAS at the state and federal level.

For questions, contact Tom Mackie, John Shea, or Peter Durning.

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Peter Durning named Managing Shareholder

Mackie Shea, PC is pleased to announce that Peter F. Durning is the new Managing Shareholder of the firm.

In addition to serving in the principal management role for the firm, Peter continues to handle a wide variety of environmental matters including local, state, and federal permit proceedings and appeals. Peter is also involved in water management issues, wetlands hearings and adjudicatory appeals, environmental remediation cost recovery actions, solid waste site assignment appeals, zoning disputes, citizen suits regarding stormwater discharges, and U.S. EPA and MassDEP enforcement actions, and provides guidance on environmental issues in business and real estate transactions.

A 2003 graduate of Boston College Law School, Peter joined Mackie Shea in May 2011 and became a Shareholder in September 2015.

Mackie Shea, PC is a leading boutique environmental, land use, and litigation law firm based in Boston. Along with Shareholders, Thomas A. Mackie and John F. Shea, Peter leads the firm’s management team.

Water Management Tango

Comparing Water Management in Massachusetts and Mendoza, Argentina

As an environmental lawyer with vocational zeal, every opportunity to travel and see new places triggers a fascination with environmental policy.  During a recent trip to Mendoza, Argentina, issues related to water rights were front and center.

You could literally trip over the issue, because most sidewalks have irrigation ditches or “acequias” on the curbs and sidewalks to transport water throughout the region.

Though Mendoza sits on the very arid eastern leeward side of the Andes Mountains, the regional planners conceived a complex web of irrigation channels designed to bring fresh Andean snowmelt into the city, agricultural lands, and now the sprawling suburbs.

As with many of our environmental law projects, some of the most important work is performed by engineers. In 1889, the government of Mendoza recruited an Italian engineer, César Cippoletti, to improve the region’s hydrologic system. Cippoletti designed and supervised the construction of a dam to hold water from the Mendoza River and redirect the flow of the mountain run-off in the river through a series of directional canals. Just past the dam, one of the simplistic, yet elegant, structures designed by Cippoletti is a four-quadrant inverted cone. As the dammed water rises above the lip of the structure, it is channeled into one of four curved funnels.  The water descends through the curved quadrants, gathering speed and direction toward different parts of the Mendocino irrigation system.

 

 

 

 

 

With this complex irrigation infrastructure, the arid region boasts a cornucopia of agricultural riches, including large potato, garlic, tomato, and butternut squash farms.  But the true pride of Mendoza, is its burgeoning wine industry. High-quality wines provide a fantastic export crop with an accompanying economic boom for agro-tourism in Mendoza and the vineyards in the neighboring Uco Valley.

The arid conditions and well-developed irrigation systems are excellent for controlling the grapes’ exposure to water. In addition to regulating water, the daily temperature variations in the region have beneficial influences on the growth of a robust skin on the grapes. The grape skin is a primary driver of flavor and color in the wine-making process. Thus, these strong-skinned grapes of the Uco Valley provide good ingredients for bold wines, including Malbec, which is the primary driver of the region’s reputation.

For all of the ingenuity and planning for the advanced irrigation system, water is still a finite resource in the region. Overtaxing the system could lead to dramatic impacts for all users. To preserve and protect the region’s water resource, Argentina developed a comprehensive nation-wide regulatory scheme. Argentina adopted a Water Law in 1916, which is similar to Massachusetts’ Water Management Act(“WMA”). The Argentinian law grandfathered existing users through a system which is similar to WMA Registrations. Argentina’s Water Law accommodated new users with licenses that operate like permits in Massachusetts. Just as the Massachusetts Department of Environmental Protection (“MassDEP”) oversees water withdrawals from the various river basins in the Commonwealth, the water management system in Argentina is administered by the Departamento General de Irrigación (DGI). The DGI approves and regulates irrigation licenses, oversees allocations among historic surface water users, regulates temporary projects or discharges, and evaluates and authorizes proposed new users.

This legal structure in Argentina is very similar to the modern WMA in Massachusetts, which centralizes the administration of water rights in the professional staff of the MassDEP, rather than be subject to the whims of the political actors in the State Legislature. Like Argentina’s 1916 Water Law, the WMA creates tiers of rights between active users, at the time the law was adopted, and new users, who came on-line following the statutory observation period for registrations from 1981 through 1985. Different sections of the WMA – and the corresponding regulatory section of 310 CMR 36.00 – establish different requirements for registrations and permits, which are grounded in the WMA’s statutory purpose of protecting and preserving the Commonwealth’s precious water resources.

Managing Water as Demand Grows and Supply Is Strained

While agriculture, industry and residential development can flourish side-by-side when resources are abundant, there are tensions between users when scarcity occurs. Even with their well-developed infrastructure and generally plentiful mountain run-off, the Mendoza region still experiences drought and supply problems. The authorities simply cannot approve all proposed projects.

During our time in Mendoza, we observed a planned housing development in an advantageous location near a major arterial highway that stood fallow. Though the developer began designating internal roadways and had launched a marketing effort for new homes on the outskirts of the metropolitan area, the entire project was abandoned, because the water authority did not approve an extension of the canal system to provide water to this location. There are no potential alternate water sources. Thus, without access to the regional water distribution channels, the project was doomed. The development’s abandoned footprint sits like the shadow of a ghost town that never was, and serves as a stark warning of the perils of stretching a limited resource.

Water allocation in Massachusetts is not nearly as dire. Unlike Mendoza, Argentina, or even many communities in the Western United States, Massachusetts enjoys a temperate climate.  Water management issues in the Commonwealth do not occur against a backdrop of desert conditions. And yet, drought conditions can occur and strain a community’s ability to keep water in the taps – for industrial, agricultural, and residential users.

Additionally, the forces of impending climate change are not linear or neatly predictable.  Some models forecast the climate of Massachusetts as being very wet, but there are also predictions of more pronounced swings between periods of plentiful rain and extended periods of drought.  Against this backdrop, managing our water resources in times of relative abundance may influence how successful we are in navigating periods of water scarcity.

While Massachusetts is currently experiencing an uptick in residential and industrial development, proper planning and water needs forecasting must be part of the statewide effort to ensure there are adequate resources to support public water supplies, agricultural activity, and natural ecosystems. Like Argentina’s DGI, which has authority over irrigation licenses and can preserve resources for existing uses and ensure the system is not overtaxed, MassDEP has the power within the structure of the WMA to exercise informed professional discretion to protect our public water supplies, provide flexibility for emerging industrial needs, and preserve our shared natural resources. Though it may create some harsh outcomes – like the abandoned housing complex outside Mendoza, MassDEP also needs to be able to say “No” when users seek to over-exploit a resource.

With the WMA, Massachusetts has a strong statewide regulatory structure to provide stewardship and achieve a fine balance among residential, industrial, and agricultural users on a watershed basis.

By Peter Durning

Environmental Law Update – Fall 2018

On September 30, the Massachusetts federal District Court dismissed Toxics Action Center, Inc. v. Casella Waste Systems, Inc.,  a citizens suit under the Clean Water Act and RCRA alleging that discharges of leachate from Casella’s Southbridge landfill through groundwater had damaged surface water and contaminated private wells. The Court dismissed the RCRA counts, because additional Court action would be duplicative of  MassDEP’s enforcement actions and, therefore, not “necessary.” The Court acknowledged that “[t]he First Circuit has not addressed whether a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA.”  But the Court sidestepped the groundwater discharge issue as follows: “a landfill is not a point source within the meaning of the CWA, this Court will not reach the issue of whether the CWA extends liability to surface water that is polluted via hydrologically connected groundwater.”

On September 26, the Department of Public Utilities issued an Order providing for utilities to pay direct incentives to owners of new solar generating sources under the Solar Massachusetts Renewable Target (SMART) program.

On September 17, Massachusetts rolled out its first-in-the-nation 2018 State Hazard Mitigation and Climate Adaptation Plan which integrates climate change impacts and adaptation strategies with hazard mitigation planning.  The Plan qualifies the state for Stafford Act funds (per FEMA hazard mitigation grant criteria at 44 CFR § 201.4) and also complies with Executive Order 569.  The state will update the plan every five years, with continuous reviews, updates and revisions via the new Climate Change Clearinghouse.  To date, over 150 communities have performed vulnerability assessments and developed action-oriented resiliency plans under the Commonwealth’s Municipal Vulnerability Preparedness Program (MVP).  Certified MVP communities are eligible for MVP Action grant funding and other opportunities.

On September 4, the Supreme Judicial Court handed down New England Power Generators Association, Inc. v. Department of Environmental Protection rejecting the Power Generator’s challenge to MassDEP regulations requiring decreases in annual GHG emissions under the Global Warming Solutions Act (GWSA). Deferring to MassDEP’s interpretation of the Act, the Court ruled that the Department had the authority to impose annual declining emissions on the electric sector under Section 3 d of the Act, despite the existence of provisions in Section 3 c of the Act, which are specifically applicable to electric generating facilities.

On August 21, Governor Baker signed the $2.4B Environmental Bond Bill including provisions that put into law his 2016 Executive Order 569, establishing an integrated strategy for climate change adaptation discussed above.

On July 12, the EPA and Army Corps issued a Supplemental Notice of Proposed Rulemaking on their proposal to roll back the Obama-Era Waters of the United States (WOTUS) Rule defining the agencies’ Clean Water Act jurisdiction. The comment period ended on August 23, 2018.  Whatever the agencies ultimately decide, ongoing litigation is sure to continue to delay the clarity sought by so many in the regulated community over the breadth of the agencies’ jurisdiction.

In addition to EPA’s April 2018 proposed Strengthening Transparency in Regulatory Science rule, which would limit the scientific studies that the EPA could rely upon in evaluating new regulations, on June 13 the Agency issued an Advanced Notice of Proposed Rulemaking  to change the methodology used to calculate the cost and benefit of new environmental regulations.  Battle lines are being drawn over whether the EPA should continue to count so-called “co-benefits,” which take into account the indirect health benefits in addition to the direct benefits of a proposed new regulation. For example, in the case of the mercury air toxic rule, the EPA included $4-6M of direct health benefits from reduced mercury exposures and $80B in co-benefits attributable to the reduction of other pollutants, primarily particulate matter (PM).

In March, MassDEP promulgated a package of amendments to its air pollution control regulations at 310 CMR 7.00 across a wide array of topics, including a revamp of the rules governing appeals of air plan approvals, which had long been the source of legal uncertainty and litigation.

 

Firm Successes – Fall 2018

On November 1, Best Law Firms (2019 edition) ranked Mackie Shea Tier 1 for Environmental Law and Environmental Litigation in the Boston Metropolitan Area.  In August, The Best Lawyers in America again selected Tom and John for inclusion in the 25th Edition for their high caliber work in Environmental Law and Environmental Litigation.  Best Lawyers has recognized both Tom and John for their expertise and distinction for over a decade.  In May, Chambers USA released its 2018 Rankings, again including the firm among the top environmental law firms in Massachusetts.  According to Chambers, the Mackie Shea team is known for its “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.”  Chambers also ranked all of our shareholders, Peter Durning, John Shea and Tom Mackie, among the best individual environmental attorneys.  John, Tom and Peter are 2018 New England and Massachusetts SuperLawyers for environmental law and litigation.  These recognitions are humbling and gratifying, because the ratings are based on client referees, peer reviews, and third-party validation.  We wouldn’t be recognized for our accomplishments and skills without the challenging and cutting-edge cases entrusted to us by our clients.  Thank you.

Tom Mackie received the Stephen G. Lewis Environmental-Energy Merit Award for Service to the Environmental Industry at the 25th Annual EBEE ceremony on June 27, 2018.  He was chosen for the Award by the Environmental Business Council of New England (EBC) in recognition of his meritorious service, leadership and dedication to improving the quality of the environment and to the development of the environmental industry in New England.  Tom served as Chairman of the Board of Directors of the EBC for two years, and chairs many EBC education programs.

Outgoing EBC Chair, Tom Mackie, EBC President, Dan Moon, and incoming EBC Chair, Bob Cox.

Mike Scipione, a former EBC Chair and President of Weston & Sampson, presented the Stephen G. Lewis Environmental-Energy Merit Award for Service to the Environmental Industry to Tom Mackie.

 

 

 

 

 

 

 

At the same award ceremony, Tom presented to MassDEP Commissioner Martin Suuberg the Paul G. Keough Environmental-Energy Award for Government Service.  Paul served over 20 years as EPA Region 1’s Press Secretary, Deputy Administrator, and acting Regional Administrator under both democrat and republican Presidents.  Paul was a beloved, energetic and committed public servant and friend.  So, too, is Marty Suuberg with over 30 years of experience in state and federal environmental and natural resource agencies as a lawyer, manager and Regional Director.  He has been MassDEP Commissioner since January 2015.

Tom presented the Paul G. Keogh Environmental-Energy Award for Government Service to MassDEP Commissioner Martin Suuberg.

John Shea acted as Hearing Officer to the Dennis Board of Health on a proposed site assignment modification for a new municipal solid waste transfer station.

John negotiated an Administrative Consent Order (ACO) with the LSP Board on a license suspension.  John also negotiated an ACOP for an international corporation with MassDEP for excessive wetland alteration during work under an emergency certification to eliminate upstream flooding from beaver activities.  The client must restore the wetlands under an approved Wetland Restoration Plan and pay an administrative penalty with a suspended amount.

Firm Activities – Fall 2018

John Shea  again moderated the annual EBC Program Series with MassDEP Leadership: Commissioner Marty Suuberg and the Southeast Region Leadership Team. At the October 2, 2018 program, John introduced and questioned pinch-hitting Deputy Commissioner Gary Moran, Regional Director Millie Garcia-Serrano, and Deputy Regional Directors David Johnston, Gerard Martin, Maria Pinaud and Jennifer Viverios. Gary announced that MassDEP is working with the UMasss Donahue Institute on short- and long-term succession planning since the average age of the 660 agency personnel is 55, with 54% eligible for retirement; the challenges being how to preserve institutional knowledge and hire bright, young environmental professionals.

Dave Johnston highlighted the critical need to repair and replace failing water distribution and wastewater infrastructure. He punctuated his warning by displaying a section of a corroded and narrowing water line that is causing dirty drinking water and pipe failures in many municipalities.

Tom Mackie and Gretchen Carey of Republic Services co-chaired the EBC Solid Waste Committee’s July 20 Innovative Alternative Technologies to Manage Municipal Solid Waste program.  The international panel from Denmark, Great Britain, Australia and the Netherlands presented technologies from around the world, ranging from enzymatic separation to advanced gasification.

On September 18th, Tom chaired the third annual EBC Solid Waste Committee meeting with the MassDEP Regional Solid Waste Section Chiefs. Greg Cooper, the MassDEP Solid Waste Division Director, provided an overview.  Mark Dakers (SERO), Mark Fairbrother (NERO), Dan Hall (WRO) and Jim McQuade (CERO) provided updates on their regional priorities, permits issued and changes in their departments to a packed room of solid waste industry officials and consultants.

 

Peter Durning attended several industry events this fall, including the Boston Bar Association’s Annual Meeting in September, the LSPA’s 25th Anniversary event at Mechanics Hall in Worcester, as well as the Massachusetts Water Works Association’s Annual Meeting in Devens, MA.

Peter also had the opportunity to attend the VIP-Preview Night for the Grand Opening of the MGM Springfield casino.  Peter and Tom represented MGM in a zoning litigation matter  in the Land Court.

Peter Durning and John Shea participated in the EBC Program Series with MassDEP Leadership: Commissioner Suuberg and the Central Region Leadership team on September 25th.  The most exciting news was the Brownfield redevelopment in Kelley Square and the Canal District for the proposed Polar Park, the future home of the WOOSOX.  In addition to the ballpark, there will be hotels, shops, restaurants, and market rate housing.

 

“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.