NEWS

MassDEP is Calling RCC Permit Applications

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

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

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

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

For questions, call or email Tom Mackie.

MassDEP’s TCE Closed Site Review: The Legalities

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

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

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

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

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

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

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

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

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

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

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POTUS Has Trumped WOTUS Before SCOTUS

In our Spring and Fall 2015 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the “Rule”). The Rule sought to codify the criteria the agencies have applied on a case-by-case basis using the three alternative tests announced by the Supreme Court of the United States (“SCOTUS”) in Rapanos v. United States, 547 U.S. 715 (2006) to define the jurisdictional scope of Waters of the United States (“WOTUS”) under the Clean Water Act. As we predicted, industry groups, 30 states and environmental groups challenged the extension of EPA jurisdiction in federal district and appellate courts.  The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the Rule, and later agreed with the federal government that the Rule was reviewable exclusively in the circuit courts of appeal.  The SCOTUS agreed to resolve the jurisdictional fights over which federal court should hear challenges to the Rule.  Thus, the Sixth Circuit stayed the litigation over the merits of the WOTUS Rule until the SCOTUS decides the narrow jurisdictional question of which courts have jurisdiction to hear substantive challenges to the Rule.  SCOTUS arguments are scheduled for April with an expected June decision.  On April 3, 2017, SCOTUS denied POTUS’ request to stay hearing on the venue for the WOTUS review.

During the campaign, Donald Trump pledged to “eliminate the unconstitutional” Rule and to “direct the Army Corps of Engineers and EPA to no longer use this unlawful rule and related guidance documents in making jurisdictional determinations.”  The SCOTUS grant of review gave the POTUS time to decide how to eliminate the Rule.  On February 28, 2017, the POTUS decried the Rule as a “massive power grab” and signed an Executive Order to direct EPA Administrator Pruitt to begin the legal process to dismantle the Rule and to Attorney General Sessions to ask the court to delay a decision until a new regulation is released.  The process for withdrawing the Rule is lengthy, will require justification, be subject to public comment, and potential challenge in new lawsuits which may end up in the SCOTUS, that will include the POTUS’ newly appointed justice, Neil Gorsuch.  The Republican Congress could also scuttle the Rule legislatively.  (A non-binding resolution was introduced in the House of Representatives that supports the Executive Order.)  Congress could also defund EPA wetlands activities.

The Pruitt EPA will likely be less aggressive in enforcing Clean Water Act violations.  Massachusetts may not be as affected because it has a strong Wetlands Protection Act and many municipalities have Home Rule Wetlands Protection laws.

Until SCOTUS addresses the new Rule years from now, EPA and the Corps presumably will make WOTUS determinations using the Rapanos tests.  A Corps’ Jurisdictional Determination will in turn be subject to judicial review as “final agency action” under the SCOTUS decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc., 101 S. Ct. 1807 (2016).  Lawyers for industry, public interests, conservationists and environmental organizations will be fully employed for the next decade.

Firm Successes – Spring 2017

Tom Mackie and Peter Durning secured final victories over the Conservation Law Foundation and other opponents to our client’s proposed Springfield, MA biomass energy facility by defeating an air plan appeal in the Superior Court and a noisome trade site assignment petition before the Springfield Public Health Commission.

John Shea assisted Jacqueline Nuñez of the WonderGroup in securing a MassDEP Superseding Determination of Applicability that allows this first-of-its-kind green housing development within the City of Boston to move forward.

Through their adjudicatory appeal of a MassDEP air plan approval, John Shea and Peter Durning secured protection for the neighbors to a new industrial facility in the form of additional air emission controls; compliance testing; noise mitigation and monitoring; and limited hours of operation.

Peter Durning and John Shea provided due diligence support and compliance advice under the Massachusetts Contingency Plan for structuring the acquisition and cleanup of a contaminated property to a national developer who is building a mixed-use residential and commercial project in Belmont.

John Shea assisted in achieving a Temporary Solution in compliance with a Consent Judgment deadline for the cleanup of a metal finishing site in Taunton, and conducted public hearings on site assignment modifications for landfill operations as the Hearing Officer to the Taunton and Westminster Boards of Health.

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Delegation of NPDES Program

In this space in the August 2016 Newsletter, we heralded Governor Baker and MassDEP’s efforts to secure from EPA delegation to administer the National Pollution Discharge Elimination System (NPDES). Proposed legislation was sent to die in study at the end of 2016 legislative season by the Joint Committee on Environment, Natural Resources and Agriculture. On March 8, 2017, Governor Baker filed An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System that will allow MassDEP to administer the NPDES program as in 46 other states. The legislation will make changes to the Massachusetts Clean Waters Act, which are required for MassDEP to apply to EPA. The Fiscal Year 2018 budget proposal includes a $1.4 million “seed” investment to support the NPDES program. The appropriation will increase to $4.7 million in FY 2019. The initial funding will allow MassDEP to hire 12 new staffers to phase-in NPDES program development and conduct water quality analyses.
In addition to this legislation (if passed), MassDEP must demonstrate to EPA it has an effective plan for managing the NPDES program, the Clean Waters Act will meet federal requirements, and a funding plan is in place. EPA personnel and budget cuts proposed by the POTUS support the delegation plan. It is hoped that MassDEP will engage more closely with municipalities and other permittees, and be more flexible and collaborative in an interactive process that will consider what is technically and economically feasible to attain water quality standards. Delegation may also put MassDEP squarely in the litigation crosshairs of environmental groups which are unhappy with the manner or speed with which MassDEP implements the NPDES program

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Waterways

The Waterways regulations (310 CMR 9.00) protect public trust lands, including waterways and filled former tidelands. Recent amendments effective on March 10, 2017 explain the requirements for Facilities of Public Accommodations (“FPA”) to protect public rights and benefits of the transient public along the waterfront and water-dependent marine uses (fishing, boat repair, commercial passenger and shipping) in Designated Port Areas (“DPA”) from displacement by non-water dependent commercial, residential and recreation uses. Difficulties in securing long-term FPA uses (restaurants, retail stores, hotels, museums) on the ground floor of buildings on filled public and private tidelines, prompted amendments that now allow the substitution of Facilities of Limited Accommodation (“FLA”) (310 CMR 9.56). There are strict qualifying and design criteria, and payment of 20% of net operating income to fund waterfront activities. Future review is required to determine if a FPA can be supported.
EOEEA has promulgated amendments to two sets of waterfront-related regulations implemented by the Massachusetts Coastal Zone Management Program (“Mass CZM”). First is a voluntary procedure for municipalities to secure approval of Municipal Harbor Plans by Mass CZM to guide MassDEP in making decisions under Chapter 91 (301 CMR 23.00). Second are revisions to the procedures for setting and modifying the boundaries of Designated Port Areas by Mass CZM in order to increase flexibility for allowing new and expanded economic development opportunities while still protecting current and future marine and industrial uses. (301 CMR 25.00)

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Greenhouse Gas Initiative After Kain v. DEP

Following the SJC’s ruling in Kain v. DEP that MassDEP had failed to properly implement the Global Warming Solutions Act which required regulations that “establish volumetric limits on multiple sources of greenhouse gas emissions sources (that) decline on an annual basis,” Governor Baker issued Executive Order No. 569 that required inter alia MassDEP to promulgate regulations to satisfy the 2020 state-wide carbon reduction targets. MassDEP has issued draft regulations designed to obtain greenhouse gas reductions in the natural gas, transportation and electricity generation sectors. The final regulations are expected by August 2017. The proposed GHG regulations require reductions:
• in CO2 emissions by Mass DOT and the MBTA and from state fleet vehicles;
• in sulfur hexafluoride emissions from leaking gas-insulated switchgears by National Grid and Eversource;
• in methane emissions from gas mains and service lines; and
• GHG emissions from large power plants (23 existing and all new facilities).
The regulations would increase “clean energy” (renewables and hydropower) from 16% in 2018 to 80% in 2050 provided by retail electricity providers, distributors, competitive suppliers and municipal light plants through the use of clean energy credits.

Proposed Air Regulations

MassDEP has proposed an omnibus package of air pollution control regulations at 310 CMR 7.00 that should be promulgated this Spring. The amendments cover applicability of Plan Approvals for GHG and CO2 at new and existing facilities; establish exemptions; and include updates to match EPA requirements for lead emissions, VOC RACT, NOx RACT, and a NOx Ozone Season budget.
The proposed air regulations provide much needed timelines and procedures for requesting adjudicatory appeals of air decisions. Who has standing to appeal, and when and how to appeal air permits was the subject of several MassDEP adjudicatory hearing and Superior Court decisions. The regulations now define “aggrieved person.” The “date of issuance” is the date the decision is sent to the applicant. Importantly, a copy of the decision must be posted on the MassDEP’s website in order to notify people when the 21-day appeal period begins. Ten person groups have a right to request an adjudicatory hearing, provided they have submitted comments during the public comment period on a pending permit application for air emission sources that emit 10 tons or greater of regulated pollutants, and only on issues relating to damage of the environment.

MassDEP to Open 2020-2030 Solid Waste Master Planning

This summer the MassDEP Solid Waste Advisory Committee will begin reviewing “Pathway to Zero Waste,” the 2010-2020 Solid Waste Master Plan. While it may seem early for the Committee to start the process for a 2020 plan, this is a notoriously slow process.  The MassDEP did not issue the 2010-2020 Master Plan until April of 2013, so starting three years before 2020 seems about right.

Although the Department has not set an agenda, the focus should be on raising the flattened waste reduction curve and responsibly managing the waste that is generated.  Environmental groups will continue to advocate “zero waste,” pushing for more waste bans and better enforcement of existing bans. Meanwhile, they will continue to actively oppose expansions of existing disposal or new facilities by drumming up fears of public health and environment harm.

The solid waste industry has openly embraced economically viable zero waste solutions (while quietly investing in waste export rail infrastructure). Industry skepticism is fueled by the economic realities of a protracted soft market for recyclables, relatively low local disposal pricing and high profile siting battles.  The wisdom of continued reliance on waste export as opposed to lifting the moratorium on new municipal solid waste combustion capacity will be front and center on the industry agenda.

For questions, call or email Tom Mackie a newly appointed member of the Solid Waste Advisory Committee.

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