NEWS

Tom Mackie and John Shea Named to Best Lawyers®

Mackie Shea Durning, PC, the Boston boutique environmental law firm, is proud to announce that Thomas A. Mackie and John F. Shea have been selected for inclusion in the 27th Edition of The Best Lawyers in America® (2021 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.

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RETURN TO THE PFAS ZONE

Just as Jordon Peele is bringing back the haunts and chills of the off-kilter world of the Twilight Zone for Season 2, Massachusetts finds itself being unwittingly drawn deeper into another PFAS Zone rerun.

Without going through a formal public rule making process, MassDEP is once again digging into its regulatory grab-bag to impose unprecedented requirements on industrial actors and permittees in the Commonwealth. In recent draft surface water discharge permits MassDEP issued to Shire Human Genetic Therapies and Genzyme Corporation, MassDEP unilaterally imposed new PFAS monitoring obligations. Though the draft permits acknowledge that “Massachusetts Surface Water Quality Standards do not include numeric criteria for PFAS,” the Department cites 314 CMR 4.05(5)(e) for the “narrative” criteria that “[a]ll surface waters shall be free from pollutants in concentrations or combinations that are toxic to humans, aquatic life or wildlife.”

While the Department’s push to use its regulatory authority to address the prevalence of PFAS in the environment is understandable, using the Office of Research Standards’ Guidelines as a means to backdoor stringent effluent standards on NPDES permittees imposes burdens on individual industrial facilities without any benefit of public notice of a changed regulatory landscape. While Massachusetts Administrative Procedures Act, M.G.L. c. 30A, does not impose a formal requirement that MassDEP perform a full cost-benefit analysis before promulgating regulation, M.G.L. c. 30A, § 5 directs agencies to state the fiscal impact of the proposed regulation on the public and private section for the first and second year as well as the first five years. Rolling out new regulatory initiatives in permit renewals side-steps this requirement to disclose the direct expense of imposing stringent PFAS monitoring criteria on industrial facilities. It also limits a permittee’s time and ability to plan for capital allocations that might be necessary to address or abate otherwise permissible discharges.

Given the prevalence of PFAS and its pre-cursors in a great range of industrial applications, the likelihood that any specific discharge may exhibit some concentration of PFAS is extremely high. That the discharge levels can be mitigated or eliminated either through changed industrial processes or at the discharge point is unknown. Advancing regulatory programs in a public and orderly fashion, not only allows industry to understand what risks and costs they may face, it also spurs innovation in remedial technologies. In contrast, MassDEP’s ad hoc approach is going to cast permittees into a thicket of monitoring requirements and eventually noncompliance for exceedances that do not have proven cost-effective treatment alternatives at this scale. While the regulatory limits for surface water discharges have not been established, the only allowance the draft permits provide for terminating the monitoring requirement is four (4) consecutive quarterly samples being measured at the nano-gram per liter sensitivity “reported as non-detected for all six PFAS compounds.” That is an infinitesimally low bar that few facilities will be able to meet. The one immediate reprieve is the lack of a public EPA multi-lab validated method for testing wastewater.

During the Trump administration, environmental concerns have been given short-shrift at the federal level and inter-governmental cooperation is at a low ebb. Earlier this summer, Massachusetts submitted a public comment letter to EPA on the proposed 2020 Multi-Sector General Permit requesting that EPA add a requirement for annual PFAS monitoring for 13 industrial sectors regulated by the MSGP, which will likely be rebuffed as the two regulatory agencies struggle to find common ground on the administration of CWA NPDES permits. While MassDEP is probably correct to hedge its bet that EPA is not going to salute its proposal to include PFAS monitoring in the MSGP, the Department should not attempt to achieve the same aim by ambushing permittees seeking routine renewals.

The last time we wrote about MassDEP leading drinking water suppliers into the PFAS Zone of demanding remedial action despite a lack of formal regulatory standards was May 2019. In the intervening period, MassDEP slow-walked its MCP and MCL rulemaking process while publically stating that its other regulatory programs were going to have to wait for the Department to assess and determine the specific regulatory thresholds that were appropriate for those activities. Rather than foster the public dialogue that comes with proper administrative procedures and deliberate rule-making, MassDEP is imposing new permit conditions by fiat.

Under the Massachusetts Clean Water Act, M.G.L. c. 21, §§ 26-53, MassDEP has broad discretion to implement water quality regulations. As the SJC noted in Friends & Fishers of Edgartown Great Pond, Inc. v. Dep’t of Envtl. Prot., 446 Mass. 830, 838 (2006), “The statutory purpose of the Act, expressed through its text, makes it clear that the department has the discretion to create regulations that will best preserve and also restore the quality of our waters.” If MassDEP has science-based regulations it wants to promulgate regarding PFAS in surface water bodies, it should harness its internal expertise and publish its regulatory framework with proper technical support and weather the scrutiny of a proper administrative procedure. The regulation will likely be upheld under the Department’s broad discretion, but the rulemaking process will promote better dialogue among MassDEP and the regulated community while helping to foster strategies for achieving compliance rather than fear of enforcement.

Though we will have to wait on a formal opportunity to issue public comments on any proposed Surface Water Quality Standards, interested parties may comment on the two draft 401 certifications and State permits issued to Shire Human Genetic Therapies and Genzyme Corporation. The deadline is Thursday, August 13, 2020.

Written comments may to be submitted by email to npdes@mass.gov, or by regular mail to:

Xiaodan Ruan
MassDEP Surface Water Discharge Program
Bureau of Water Resources
1 Winter Street – 5th Floor
Boston, MA 02108.

Mention Shire Human Genetic Therapies or Genzyme Corporation in the subject line of your email or the reference line of your letter.

If you want to discuss the implications of the development on your permits or collaborate on a comment letter, contact us at Mackie Shea Durning, PC.


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CLIENT ADVISORY: GOVERNOR BAKER ISSUES UPDATED ORDER ON STATE PERMITTING DEADLINES

On July 1, 2020, Governor Charles D. Baker issued a new Executive Order addressing certain state permitting deadlines in light of improved conditions in the Commonwealth during the COVID-19 state of emergency.

The new order, COVID-19 Order No. 42, rescinds the prior state permitting order, Order No. 17, which affected a broad group of state permitting approvals. Read our prior Client Advisory for a description of the affected approvals.

Order No. 42 sets new deadlines for constructive approvals, hearings, decisions, and appeal rights that would have been effective between March 10 and July 1 but were suspended under Order No. 17, and sets a date certain for these deadlines that become effective after July 1 and going forward:

  • Constructive approvals that would have issued during the affected period will now issue on August 17, 2020, and constructive approvals that will issue after July 1 will now issue according to their usual statutory or regulatory deadline or on August 17, whichever is later.
  • Hearings that the permitting agency would have required to commence during the affected period will now commence before August 10, and hearings that would commence after July 1 will now commence according to their usual statutory or regulatory deadline or by August 10, whichever is later.
  • Decisions that the permitting agency would have been required to issue during the affected period will now be issued on or before August 10, and decisions that must issue after July 1 will now be issued according to their usual statutory or regulatory deadline or August 10, whichever is later.
  • Appeal rights that would have expired during the affected period will now expire on August 10, and any appeal rights that would expire after July 1 will now expire according to their usual statutory or regulatory deadline or by August 10, whichever is later.

Order No. 42 also pauses or “tolls” permit approvals which were valid as of March 10 and provides that these approvals will not lapse until after the state of emergency is terminated, when the number of days remaining as of March 10 until the original deadline will be tacked on to end and will establish the new deadline.

The Order, given at 5:30 p.m. on July 1, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

EPA AND ACOE ISSUE NEW “WATERS OF THE UNITED STATES” RULE FOR CLEAN WATER ACT JURISDICTION

In April 2020, two days before the U.S. Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (ACOE), published the Navigable Waters Protection Rule redefining the scope of waters subject to federal regulation under the Clean Water Act (Act or CWA).

The Act, which prohibits the discharge of any pollutant into “navigable waters” without a permit from the EPA under the National Pollutant Discharge Elimination System (NPDES) and the discharge of dredge or fill material into “navigable waters” without a permit from the ACOE under the Act’s Section 404 permit program, defines “navigable waters” as “the waters of the United States, including the territorial seas.” Although the Supreme Court has consistently held that the CWA’s jurisdiction extends beyond waters that are actually navigable, a clear definition of “waters of the United States” (WOTUS) has eluded lower courts and federal regulators since the Supreme Court decided Rapanos v. United States in 2006. In Rapanos, a plurality opinion by Justice Antonin Scalia interpreted WOTUS to cover relatively permanent or continuously flowing bodies of water connected to traditional navigable waters, as well as adjacent wetlands with a continuous surface water connection to these waters. Although concurring in the ultimate decision, Justice Anthony Kennedy wrote a separate opinion with a different interpretation of WOTUS, covering any wetlands that have a “significant nexus” with traditionally navigable waters. The 4-1-4 decision did not establish a clear precedent for the WOTUS definition.

In June 2015, the Obama Administration published the Clean Water Rule to clarify the WOTUS definition after questions arose over the government’s authority when confusion around the WOTUS definition stalled CWA enforcement actions. The Clean Water Rule looked to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and adopted Justice Kennedy’s “significant nexus” standard to implement this objective. The rule thus covered any waters that, either alone or in combination with similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of traditional navigable waters. It established six categories of waters that were jurisdictional by rule; specified waters that were excluded from CWA jurisdiction; and identified two categories of waters (similarly-situated regional waters and floodplain waters) that could be subjected to a case-specific significant nexus jurisdiction analysis.

The new Navigable Waters Protection Rule replaces the Clean Water Rule and, in doing so, shifts the emphasis of the WOTUS definition more in line with Justice Scalia’s plurality opinion in Rapanos. Under the new rule, jurisdictional waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The new rule establishes four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface water flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters. All other waters or features are excluded from CWA jurisdiction.

This new rule will have the effect of further muddying the waters of CWA jurisdiction as the regulatory pendulum swings back once again, risking further confusion in an area where consistency and predictability are key. As the new rule reduces the Act’s reach over the nation’s waters, it is expected that it will also reduce the number of permits required under the NPDES and Section 404 permit programs. There are five lawsuits currently in federal court which are challenging the Navigable Waters Protection Rule, including a lawsuit in Massachusetts federal court.

We will continue to monitor judicial and administrative developments under the CWA as courts, the EPA, and the ACOE apply this new rule. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

By Peter M. Vetere

U.S. SUPREME COURT ISSUES NEW GUIDANCE ON CLEAN WATER ACT PERMITTING

In April, the United States Supreme Court issued a decision that could drastically expand the scope of activities requiring a permit under the federal Clean Water Act (CWA or Act). The case, County of Maui v. Hawaii Wildlife Fund, involved a wastewater reclamation facility in Hawaii that pumped treated waste water into groundwater injection wells, from which the effluent would enter groundwater and flow to the Pacific Ocean.

The Court held that, even though the effluent traveled through groundwater (a non-point source) before entering the ocean, this activity required a CWA permit, because it was “the functional equivalent of a direct discharge from the point source into navigable waters.” In doing so, the Court introduced a new test for determining whether indirect discharges, i.e., when point-source discharges of water pollution enters a non-point source (such as groundwater) before traveling to a water body covered by the CWA, required CWA permits.

The holding is particularly relevant to wastewater treatment facilities who pump treated effluent into groundwater wells, since that is the particular fact pattern at issue; however, it is also relevant to any point source discharger from whom pollutants could travel through groundwater or another non-point source into waters of the United States.

 

CWA Permitting and Application

The CWA prohibits the “discharge of any pollutant by any person” into the waters of the United States without that person obtaining a permit from the United States Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES). The Act defines “pollutant” broadly to include, among other things, any solid waste, sewage, and industrial, municipal, and agricultural waste discharged into water. A “discharge of a pollutant” is any addition of any pollutant to navigable waters from any point source. A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, or well, from which pollutants are or may be discharged.

Less clear is whether, and to what extent, a NPDES permit is required for discharges of pollutants to non-point sources, such as groundwater. Regulation of groundwater has traditionally been left to the states and not the federal government under the Act. Practically speaking, non-point source pollution is rarely traceable to any single discrete source and is, therefore, difficult to regulate through individual permits.

Not too long before the Court’s decision, in November 2019, the federal court in Massachusetts acknowledged the ambiguity inherent in the CWA’s application to discharges of pollutants into groundwater. In Conservation Law Foundation, Inc. v. Longwood Venues & Destinations, Inc., the District of Massachusetts deferred to EPA’s April 2019 interpretative statement on the issue and held that “discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrological connection to navigable waters.” Thus, the Supreme Court’s decision in County of Maui nullified what was the (not at all longstanding) prevailing law on this issue in Massachusetts.

The Court’s Decision and the New “Functionally Equivalent” Test

In County of Maui, a majority of the Supreme Court (in a 6-3 opinion written by Associate Justice Stephen G. Breyer) resolved the ambiguity by applying the CWA to certain discharges of pollutants to groundwater. Under the new test, the addition of a pollutant from any point source requires a NPDES permit when (i) a point source directly discharges pollutants into navigable waters, or (ii) the addition of the pollutants is “the functional equivalent of a direct discharge from the point source into navigable waters.”

Unfortunately, by resolving one ambiguity, the Court may have created more confusion instead of clarifying the law. The majority essentially staked a middle position between two arguments. The petitioner, the County of Maui’s wastewater treatment facility, argued for a bright-line “means-of-delivery” test where only direct discharges from a point source to a covered water required a permit, focusing on the manner in which the pollutant is conveyed to the covered water. The respondents, several environmental groups who filed a CWA citizen suit against the water treatment facility, argued for application of the Ninth Circuit’s “fairly traceable” test, which would have required a permit whenever pollutants are fairly traceable from the point source to a navigable water. The U.S. Solicitor General submitted an amicus brief in support of the petitioner and arguing for the application of the EPA’s April 2019 interpretative statement. The Court declined to grant deference to the EPA’s interpretation, because no party had requested it and because a total exclusion of all discharges through groundwater “would open a loophole allowing easy evasion of the [Act’s] basic purposes.”

In the end, the Court settled on the “functional equivalent” test and identified several factors which may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters:

  • transit time;
  • distance traveled;
  • the nature of the material through which the pollutant travels;
  • the extent to which the pollutant is diluted or chemically changed as it travels;
  • the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
  • the manner by or area in which the pollutant enters the navigable waters; and
  • the degree to which the pollution has maintained its specific identity at the point it enters the navigable water.

The first two factors, time and distance, will be the most important factors in most cases.

The problem with this new test is that it introduces a number of new ambiguities to replace the original ambiguity over whether discharges to groundwater required a CWA permit. The Court acknowledged these shortcomings: the list of factors is not exhaustive (“courts can provide guidance through decisions in individual cases”); the two factors which the Court said are most important will “not necessarily [be important in] every case;” and even when time and distance are important, there is only a sliding scale of the acceptable range (a permit is required somewhere between “[w]here a pipe ends a few feet from navigable waters” and “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later”).

During a status conference in federal district court following the decision, the Maui wastewater facility declared its intent to proceed to discovery and prepare its case for trial in light of the Supreme Court’s ruling. Both parties will have an opportunity to submit additional briefs on discovery issues, which the district court will hear in a further status conference at the end of June.

In combination with the EPA’s newly-promulgated Navigable Waters Protection Rule revising the definition of “waters of the United States,” which takes effect on June 22, 2020, the Supreme Court’s decision marks a major shift in CWA permitting.

We will continue to monitor judicial and administrative developments under the CWA as courts and the EPA apply this new “functional equivalent” test. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

 

By Peter M. Vetere

MACKIE SHEA DURNING, PC RECEIVES ACCOLADES FROM CHAMBERS USA

The Boston boutique environmental law firm of Mackie Shea Durning, PC and its three shareholders were recognized again as one of the top environmental law firms in Massachusetts in the 2020 edition of Chambers USA Guide

The firm is known for its “respected practice, noted for 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 Durning attorneys “are good at thinking out of the box and respond in a timely manner.”  The firm has “a really in-depth knowledge of the environmental regulations and is familiar with the regulators.”

Thomas A. Mackie is considered “the leading solid waste attorney in Massachusetts.”  Tom also has strong experience in recycling and renewable energy.  According to one client, Tom “understands the nuances of state regulatory law and has a straightforward approach to all issues, even the most difficult ones.”

John F. Shea is recognized for this expertise in hazardous waste, water, wetlands and wildlife laws, and is known for doing a “phenomenal job of translating the rules and regulations” of environmental law.

Peter F. Durning has notable experience in handling a wide range of environmental matters, including permitting issues and enforcement defense.  He is “very strategic on important decisions” and provides “excellent litigation representation” in issues concerning water and wetlands.

Chambers rankings are based on client interviews and opinions of colleagues and competitors assessing legal ability, professional conduct, client service, diligence, commitment and business sense.

CLIENT ADVISORY: EXECUTIVE ORDER EXTENDS STATE PERMITS DURING COVID-19 EMERGENCY

Governor Charles D. Baker has issued an Executive Order suspending certain state permitting deadlines and extending the validity of other state permits due to the continued state of emergency that exists in the Commonwealth because of the coronavirus outbreak.

The Order, COVID-19 Order No. 17, affects a broadly-defined group of approvals (except enforcement orders) concerning the use and development of real property; the allocation or use of water or other natural resources; or the discharge, emission, abatement, or management of waste or pollutants, that are issued by state permitting authorities under the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. The Order specifically includes constructive approvals when a state permitting authority fails to act within a specified period of time; requirements that a hearing commence within a specified period of time; and requirements that a state permitting authority issue a decision or request a superseding order of determination within a specified period of time. The Order pauses the relevant time periods for the duration of the COVID-19 state of emergency and for 45 days after its termination, after which the time periods will begin to run again.

Additionally, the Order extends the deadline for filing an appeal of a decision by a state permitting authority if the time for filing the appeal would expire during the state of emergency. The deadline to file these appeals is now 45 days after the termination of the state of emergency. The Order also extends any permits valid as of March 10, 2020, that would have expired or lapsed during the state of emergency; the expiration date of these permits is tolled during the state of emergency (but not for an additional 45 day period).

Finally, the Order suspends the requirement for the Department of Environmental Protection to hold a public hearing for adopting its Intended Use Plan (IUP) for 2020. The DEP may adopt the IUP without a public hearing by publishing a draft IUP and accepting and considering public comments on it.

Previously, Governor Baker issued an executive order requiring all businesses and organizations not designated as “COVID-19 Essential Services” to close their physical workplaces and facilities to employees and the public. The Governor has urged non-essential state employees to remain home and work remotely and has closed many state administrative offices. This new Order explains that “such closures, while essential for public health, are expected to affect the ability of the Commonwealth and its agencies to timely process requests for licenses, permits, approvals, and certificates of registration” and that “the current public health crisis is preventing people and businesses from complying with the deadlines and conditions of permits, licenses, and other approvals issued or granted by the Commonwealth and its agencies.”

The Order, given at 7:05 PM on March 26, 2020, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

The full text of the Order is available at https://www.mass.gov/doc/march-26-2020-permit-extension-order/download. If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

CLIENT ADVISORY: COVID-19 Impacts on Solid Waste

FEDERAL UPDATE
The Federal Motor Carrier Safety Administration consolidates all updates regarding its Expanded Emergency Declaration at the following website: https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19.
 
The Expanded Emergency Declaration, No. 2020-02, which was issued pursuant to 409 C.F.R. § 390.23, covers all 50 states and the District Of Columbia.
 
The Expanded Emergency Declaration “provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for…(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 
The FAQ issued connection with the Expanded Emergency Declaration provides the following clarification:
 
 
Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 

 
MASSACHUSETTS UPDATE
On March 20, 2020, Governor Baker issued a Declaration of Emergency Notice, pursuant to 49 C.F.R. § 390.23 declaring “that an emergency exists pertaining to an essential service, the intrastate pickup of residential and commercial refuse from residences and businesses and the delivery of such refuse to recycling and landfill sites within the Commonwealth of Massachusetts.
 
 

 
From concerns over infectious trash, to an expected shortage of employees, the solid waste industry and regulators are busy developing contingency plans to address possible impacts of COVID-19.
 
 
The industry has historically weathered flu seasons and earlier outbreaks.  Thus, in its March 6 Guidance on Coronavirus (COVID-19) the Solid Waste Association of North America has not recommended any special precautions to protect waste workers from COVID-19.  Nevertheless, the Association recommends that employers and managers review the US Centers for Disease Control and Prevention’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

Similarly, the National Waste and Recycling Association (NWRA)’s March 9th FAQ on 2019 Novel Coronavirus states that “[b]ased on discussions with the CDC, waste from households can be managed as they typically would be for the flu. No special precautions are necessary.” For worker safety the NWRA recommends the typical “general precautionary measures” and references OSHA’s requirement that workers use appropriate engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposure.
 
More recently, OSHA has issued an Alert to Prevent Worker Exposure to Coronavirus (COVID-19) that contains the same precautions we have heard repeatedly on the news and from public officials and a Guidance on Preparing Workplaces for COVID-19 which does not categorize workers in the solid waste industry as either medium or high risk of exposure.
 
Beyond concerns over the trash itself and worker safety, the industry is concerned about the effect of emergency declarations and strict regulations on its ability to operate.  In order to address the foregoing concerns, on March 16, the NWRA sent a request to all states for regulatory flexibility in handling of municipal solid waste, yard waste and recycling. Separately, the NWRA has requested a “Critical Industry” designation from Governor Baker that would exempt the industry from economy wide constraints that the government may promulgate under the Governor’s Declaration of a State of Emergency.
 
Possible employee shortages are the main concern.  A waste handling facility without employees cannot run itself, nor do garbage trucks drive and pick up waste without drivers.  The industry and regulators are anticipating possible facility outages or difficulties moving waste.  In addition to typical curb side collection of commercial and residential waste, the industry in New England relies very heavily upon long-haul trucking and rail of waste to out-of-state landfills such as those in New York, Ohio and Virginia.  Since there is not enough disposal capacity within New England for all of our waste, if transport to these out-of-state landfills is curtailed, waste will back up locally.  The same holds true for facilities within Massachusetts. For example, about 66% (3.2 M tons/yr.) of our municipal solid waste goes to 7 energy from waste facilities.  If one of these facilities cannot operate due to employee absences, the waste will need to be redirected.  Currently there is no flex built into the system to accommodate that additional waste. In order to avoid the specter of waste piling up at the curbside, industry and government officials are discussing various temporary local relief valves, such as lifting facility tonnage limits, to absorb whatever backups may occur
 
Let’s hope that none of these eventualities come to pass and that our social distancing will flatten the curve enough to keep people healthy and get the economy back up and running soon.  Meanwhile, bag your waste and wash your hands!
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PFAS: FROM “EMERGING CONTAMINANTS” TO “FOREVER CHEMICALS”

There is growing evidence about the harmful effects from Per- and Polyfluoroalkyl (“PFAS”) substances in our drinking water supplies.  The urgency for decisive and prompt action to treat PFAS in drinking water to below evolving cleanup standards and maximum contaminant levels is now second only to the public health challenges posed by the coronavirus pandemic.  What to do about PFAS dominates the agendas of federal and state regulators, municipal boards, public water suppliers and consumers.  MassDEP set PFAS cleanup standards under the Massachusetts Contingency Plan (“MCP”) in December 2019, released an updated Office of Research and Standards Guideline (“ORSG”) for PFAS in drinking water in January 2020, and will promulgate a Maximum Contaminant Level for PFAS compounds in drinking water by mid-2020 – all limits to be 20 parts per trillion (“ppt.”) for the aggregate of six PFAS compounds.  There is constant news coverage on NPR and TV, and in newspapers, magazines and books.  A 2018 investigative documentary film, The Devil We Know, reported PFAS can be found in the blood stream of nearly every American.  Dark Waters is a three-star Hollywood conspiracy thriller about Rob Bilott’s crusade against Du Pont, a manufacturer of PFOA.  Lawsuits are proliferating to recover cleanup costs and damages, and to fund health studies, and by manufacturers to challenge state regulations.  PFAS has spawned hundreds of conferences and seminars on technical, forensic and litigation issues (now virtual events due to the virus). 

Our law firm has participated in the emergence of PFAS since the UCMR3 results became public in 2014.  We advised Public Water Systems (“PWS”), local governments and private clients in “real time” as the contaminant escaped from the “PFAS Zone” (a/k/a Legal Limbo) of conflicting, non-enforceable federal and state guidelines, the lack of scientific consensus on human health effects, and the “encouragement” of MassDEP for PWS to take immediate steps to monitor and plan for PFAS treatment systems, even in advance of MassDEP promulgating MCP cleanup and an MCL standards for PFAS in drinking water. 

Our work includes:

  • evaluating the implications of the PFAS results from the UCMR3 and UCMR4 sampling events;
  • advising on “voluntary” compliance with MassDEP’s non-enforceable ORSG health advisory of 70 ppt and now 20 ppt for PFAS concentrations in drinking water;
  • recruiting water supply engineers to work with PWS to monitor groundwater, and to plan for the design, permitting, procurement and installation of cutting-edge treatment systems, such as granulated activated carbon (GAC) and ion exchange resin;
  • consulting and negotiating with MassDEP, PRPs and treatment system vendors to identify potential treatment systems, to pre-approve, procure and fast-track the permitting and construction of treatment systems; and to provide an interim bottled water supply for town residents and schools;
  • commencing cost recovery and common law claims against PRPs;
  • searching for additional PFAS sources and PRPs; and,
  • advising clients on risk communication to consumers, media interactions, and funding for expensive monitoring and treatment systems.

We also advise companies during ASTM due diligence assessments on the impacts of PFAS on proposed acquisitions, and on MCP investigations at target sites.  John Shea lectured on “PFAS Liability and Funding Sources” to the New England Water Works Association (“NEWWA”) and Peter Durning on “Litigation Issues related to PFAS in Drinking Water” to the Massachusetts Water Works Association (“MWWA”).  John also worked on the MWWA’s comments on the proposed MCP and MCL standards.

Background

PFAS were created in the 1930s and used widely since the 1940s in commercial and industrial products from the 1950s because of their fire resistance and oil, grease and water repellant properties.  There are over 4,000 PFAS synthetic chemicals with carbon-fluorine chains.  The primary regulatory focus is on the long-chain chemicals:  PFOS, PFOA, PFHxS, PFNA, PFHpA and PFDA.  Industrial uses included: Firefighting Aqueous Film-Forming Foam, medical devices, textiles, furniture, clothing, rubber, plastics and paper.  Commercial uses included: non-stick cookware, candy wrappers, microwave popcorn bags, pizza boxes, shampoo, dental floss, cosmetics, carpets, fast food containers, rain coats, and vehicle waxes.  Manufacturers ceased PFAS production in favor of new chemicals with unknown health risks, such as Gen-X.  Imported products still contain PFAS.

PFAS became an “emerging contaminant:” disclosed in litigation against manufacturers in the early 2000s, EPA’s 2009 provisional health advisory of 200 ppt for PFOS and 400 ppt for PFOA issued “in response to an urgent or rapidly developing situation,” EPA’s 2012 Unregulated Contaminants Monitoring Rule (UCMR3) testing of PWS for PFOA and PFOS, and the 2013 C8 Science Panel Study funded by a 2005 settlement.  Based on the growing number of recent studies on PFAS by EPA, state agencies, universities, and others, PFAS have fully “emerged” and become “forever chemicals” due to their chemistry, persistence in the environment, resistance to breakdown by microbes and light, and solubility and mobility in water.  PFAS are in soil, water and even air, are absorbed by plants and animals through the food chain, and bioaccumulate in blood and tissue, which can result in toxic threshold concentrations increasing the risk of health effects.  Human exposure is primarily through drinking water and food.  PFAS are distributed through the body by plasma and into the liver, kidneys, and placenta.  PFAS are eliminated by urine, feces and breast milk over unknown years.  Studies indicate that exposure to elevated levels of certain PFAS may cause development issues in fetuses and infants, affect the thyroid, liver, kidneys and immune systems, and even pose a risk of cancer.  Sources of PFAS include manufacturing sites, firefighting foam, spills and air deposition, and landfills where releases leach from soils into groundwater or flow into surface water.

EPA

EPA’s process for setting Maximum Contaminant Levels (MCLs) in drinking water for specific chemicals begins with testing for candidate contaminants not currently regulated but likely to pose risks to public health and the environment.  In 2012, under EPA’s UCMR3 testing, PFOA and PFOS were among 30 contaminants tested by 5,000 PWS serving 80% of the US population.  In Massachusetts, 158 PWS serving more than 10,000 persons and 13 smaller systems had nine detections above EPA’s reporting limits (20 ppt for PFOA and 40 ppt for PFOS).  Since then, additional testing found PFAS above and below the old MassDEP ORSG advisory of 70 ppt.  Twelve PWS exceeded the proposed 20 ppt standard.  When varying but significant concentrations were detected in UCMR3, in 2016 EPA issued a non-binding Health Advisory that PFOA and PFOS levels above 70 parts per trillion (ppt) pose a risk of birth defects, testicular and kidney cancer, and developmental problems. 

EPA released its PFAS Action Plan on February 14, 2019, which proposed technical assistance on PFAS testing, monitoring protocols on treatment and remediation technologies, and toxicity assessments for five additional PFAS, and adding PFOA and PFOS as hazardous substances under CERCLA.  On June 10, 2019, EPA concluded public comment on the draft Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS, which will provide guidance for CERCLA and RCRA cleanups.  On November 22, 2019, EPA made available $4.8 million in funding for research on PFAS in agriculture.  On February 20, 2020, EPA proposed regulatory determinations for PFOS and PFOA, and seeks public comment on eight more contaminants on the UCMR4 candidate list.  EPA’s formal MCL rulemaking under the Safe Drinking Water Act takes at least 18 months, and by operation of law new MCLs are not effective for three years.  Some critics of the Plan see it as too slow and “kicking the can down the road.”  Perhaps motivated by the specter of Flint Michigan and by intense media coverage, States (NH, NJ, NY, MN, MI, CA, VT, CT, RI) are not waiting for Washington and are issuing their own MCLs and health advisories.

Massachusetts

EPA, the World Health Organization, and the States are developing health advisories, guidelines, goals and MCLs to address evidence that PFAS at very low concentrations represent a potential public health concern in sensitive populations.  Massachusetts has uniquely decided to use a three-pronged strategy to establish drinking water standards for PFAS: health advisories, an MCL, and cleanup standards under the MCP.  On October 25, 2018, the Conservation Law Foundation and Toxics Action Center filed a “Petition for Rulemaking to Establish a Treatment Technique Drinking Water Standard for PFAS” that advocated 20 ppt for five PFAS.  In its January 28, 2019 Response, MassDEP described its “game plan” to initiate multiple, transparent regulatory processes to address the potential risks posed by PFAS in drinking water.  Accordingly, MassDEP followed lengthy public processes of stakeholder meetings, public hearings and meetings, and public comment periods to adopt MCP and MCL standards.  Based upon review of scientific literature, assessments by other states, and public comments, MassDEP adopted total 20 ppt standard for the sum of six PFAS compounds.  In spite of criticisms about overly conservative decision-making based on limited epidemiological data, laboratory animal studies without a definitive connection with specific human diseases, the presence of PFAS in soil at background levels in excess of 20 ppt, and the application of uncertainty factors, MassDEP did not waiver from the very early proposed 20 ppt standard, and used the MCP process to “inform” (bootstrap) the MCL and ORSG processes.  In an abundance of caution, MassDEP has acted deliberately and decisively to require cleanups under the MCP to protect water supplies, and to require PWS to comply with a conservative MCL ensuring the delivery of clean and safe drinking water. 

Massachusetts Contingency Plan

On December 27, 2019, MassDEP finalized revisions to the MCP (310 CMR 40.000) for the sum of six PFAS compounds.  The MCP is the “cookbook” for Licensed Site Professionals (“LSP”) to assess and cleanup contaminated sites.  The PFAS revisions include: Reportable Concentrations (“RC”) in groundwater and soil and Reportable Quantities, Method 1 cleanup standards for groundwater and soil, Method 2 standards for soil, and Method 3 Upper Concentrations Limits for groundwater and soil.  The regulations provide a listing of toxicity information for performing a Method 3 risk characterization (Listed PFAS compounds are for the acid and anionic forms.).  The PFAS Sampling Guidance was revised on December 27, 2019 to reflect the new standards (described below). 

There were four public hearings and a public meeting, and 51 comments were submitted.  The majority of the testimony and comments focused on Reportable Concentrations and cleanup standards.  MWWA submitted a 13-page comment letter with expert toxicological reviews and the Michigan 2019 Health-Based Drinking Water Value Recommendations for PFAS.  MWWA argued that it is premature to be setting regulatory standards before “there is a better understanding of expected background levels and sources, and understanding of the extent of PFAS prevalence in the Commonwealth, and most importantly, a better understanding of the real potential human health impacts at the low levels that are being detected and potentially regulated in drinking water within Massachusetts.”

In the end, MassDEP retained its proposed groundwater RC and the RC GW-1 and GW-1 Method 1 standard of 20 ppt for the sum of six PFAS in order to protect current and potential drinking water sources.  Based on comments on the background levels of PFAS in soil, the RCS-1 RC and the S-1/GW1, S-2/GW-1, and S-3/GW-3 Method 1 soil standards were revised from 200 ppt to six chemical specific standards ranging from 300 to 2,000 ppt.

MassDEP recommends that LSPs should sample for PFAS in or near GW-1 areas where certain activities may have occurred: PFAS manufacturing facilities, textile manufacturing companies, landfills with uncontrolled leachate potentially containing PFAS, airports, crash sites and firefighting training areas where foam was used or stored, and metal plating and coating facilities.

ORSG

On January 27, 2020, MassDEP issued an updated Office of Research and Standards Guideline (“ORSG”) for drinking water of 20 ppt, individually, and the sum of the concentrations of six PFAS (PFOS, PFOA, PFHxS, PFNA, PFHpA, PFDA).  The updated ORSG replaces the June 8, 2018 guideline for drinking water of 70 ppt for five PFAS compounds.  The new guideline is based on a draft Toxicology Profile for PFAS by the ATSDR (2018), scientific assessments by other state agencies, input from the MassDEP Health Effects Advisory Committee, and public comments received on the draft MCP PFAS standards.  The lower drinking water standard of 20 ppt for the sum of six PFAS compounds presumably provides a greater degree of health protection to sensitive groups, including pregnant women, nursing mothers and infants.

The new ORSG and the updated Technical Support Document (December 26, 2019) can be found at: https://www.mass.gov/info-details/per-and-polyfluoroalkyl-substances-pfas#health-advisories-and-downloadable-fact-sheets-.

Maximum Contaminant Level

MassDEP has proposed revisions to the Massachusetts Drinking Water Regulations (310 CMR 22.00) to establish a Total PFAS MCL of 20 ppt for six PFAS contaminants: PFOS, PFOA, PFHxS, PFNA, PFHpA and PFDA for Public Water Systems (“PWS”).  The proposed regulation includes minimum reporting requirements, required actions when PFAS is detected, invalidation of sample results, determination of compliance, technologies for treating PFAS in water, monitoring schedules and protocols, and health effects information for Consumer Confidence Reports.  PWS serving more than 50,000 consumers (20 systems with 4.3 million consumers) must begin quarterly monitoring for one year by April 1, 2020, before the MCL is even finalized!  PWS with less than or equal to 50,000 but more than 10,000 consumers (106 systems with 2.6 million consumers) must begin monitoring by October 1, 2021.  For 569 systems serving 708,000 consumers, monitoring must begin by October 1, 2021.  Transient Non-Community Systems must collect a single sample by September 30, 2022.  This staggered schedule is proposed due to reflect the anticipated demand for laboratory services, and engineering design, procurement and construction of treatment systems.  The public comment period closed on February 28, 2020.  A final MCL is expected later this year.

MWWA submitted a 20-page comment letter with five appendices: Costs Incurred by PWS for PFAS (to date); a Summary of the DEP New Source Approval Process; a Treatment Planning, Design, Permitting and Construction Timeline; a Summary of the Interconnection Process; and a scientific paper, “Activation of human nuclear receptors by PFAS” from Toxicology in Vitro (2020).  MWWA presented many specific comments and several major recommendations:

  • MassDEP needs to understand the enormous financial impacts from the proposed MCL.
  • MassDEP should not act based on what other states are doing.
  • MassDEP should not apply an excessive conservative factor to a number not supported by sound science.
  • MassDEP should follow the EPA’s rigorous MCL process and implement standards only after the scientific merits have been methodically considered.

MWWA objects to an MCL of 20 ppt for the sum of six compounds because of different toxicity end points, uncertainty factors, reference doses, half-lives and bioaccumulation of each PFAS compound.  MassDEP should not use a cumulative approach and should develop compound-specific standards for each PFAS.  MWWA opposes treating values below the laboratory’s MRL as ½ the MRL.

Sampling and Testing

Did measuring to parts per trillion (“ppt”) originate with Steve Martin’s 1970s riff to “get really, really small,” or Richard Feyman’s musings on quantum particles?  One ppt is equivalent to one grain of sand in an Olympic size swimming pool, or the finding a single important second in the middle of 31,000 years!  Scientific advances in analytical equipment and new testing protocols allow the detection of PFAS at these extremely low levels.  Due to the presence of PFAS in equipment and products used to collect groundwater and drinking water samples (tubing, containers, tools), special protocols must be used to collect samples to prevent cross-contamination with PFAS.  MassDEP issued “Interim Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan” on June 19, 2018 (updated on December 27, 2019), and “Field Sampling Guidelines for PFAS” using EPA Method 537 or 537.1” in January 2020.  Method 537.1 focusses on long-chain PFAS.  In December 2019, EPA announced a new validated Method 533 that focusses on “short chain” PFAS.  MassDEP offers PFAS sampling training to PWS in person or by video.

PWS and MassDEP discovered that there are not enough laboratories certified to test for PFAS using EPA Methods 533, 537 or 537.1.  Chemical and physical properties of PFAS prevent the use of GC/MS to measure PFAS concentrations.  The advanced testing instrument costs over $250,000.  As a result, there is a backlog of samples for testing.  As more sampling is performed at disposal sites under the MCP and under the proposed MCL, laboratory capacity will be further stressed and the costs for testing will likely increase.  MassDEP needs to certify more laboratories which invest in the technology with detection limits below 4 ppt.

Wastewater Discharges and Residuals

David Abel, the award-winning environmental journalist for the Boston Globe, exposed several troubling PFAS issues involving wastewater treatment plants (“WWTP”).  In November 2019, he reported on the permitted disposal for 100,000 gallons per day of PFAS laden runoff from a NH landfill into the Lowell WWTP, which then was discharged under an NPDES permit into the Merrimack River, a source of drinking water for more than 500,000 people.  His article and pressure from environmental advocates and lawmakers caused the Lowell WWTP to suspend its contract with the landfill.  In a December 1, 2019 article, David explored how sewage sludge from Deer Island that is converted into fertilizer contained more than 18,000 ppt of three PFAS chemicals.  Maine has imposed PFAS limits in sludge fertilizer after 1420 ppt was found in milk from an Arundel farm.  MassDEP approves the land application of sludge from WWTP based on chemical quality and treatment to reduce pathogens.  There are no standards for PFAS in bio-solid fertilizers that can leach into groundwater, get absorbed by plants and ingested by livestock.  MassDEP is now requiring PFAS testing in renewed or new applications for use of sludge as bio-solid fertilizers, and may set PFAS standards.  Ironically, dumping WWTP sludge in landfills contaminates the leachate with PFAS, which then is disposed of at WWTP but is not treated for PFAS, and the PFAS ends up in WWTP sludge, and eventually in surface and groundwater supplies.  Catch-22?

Compliance Funding

The “Show Me the Money” rant in Jerry Maguire (1996) resonates in town halls during debates on how to pay for expensive, unproven treatment systems for PFAS in drinking water.  The new drinking water requirements pose a huge financial burden on municipalities.  In 2019, Governor Baker introduced a proposed Supplemental Closeout Budget of $35 million in loan money to the Clean Water Trust for water supply projects.  In December 2019, the Legislature passed a Supplemental Budget with $24 million in funding for PFAS testing, design of treatment systems at PWS, and 0% interest loans for PWS to install treatment systems.  Impacted communities can seek reimbursement for costs and expenses incurred for testing and treatment systems.  MassDEP estimates the funding is adequate to test all PWS under the proposed MCL, and will be contracting with laboratories to provide free PFAS testing to PWS.  On January 31, 2020, the Board of Trustees for the Clean Water Trust approved a 0% interest rate loan pilot program for treatment systems that remediate PFAS in public water supplies.  Request for PFAS mitigation project funding are to be submitted for “emergency” financing by the end of December 2020.

Town Meetings acknowledged the need for safe, clean drinking water, and authorize appropriations for treatment systems.  Such approvals come with the expectation that PRPs will be vigorously pursued for recovery of costs.

The Future

Over the next several years, we hope to expand our work for PWS.  It is rewarding to work with dedicated and smart municipal leaders (Selectmen, Executive Assistant, DPW Director, Water Department) to forge and implement strategies for achieving swift and continuing compliance with evolving PFAS drinking water standards and guidance, providing interim bottled water to schools and residents, selecting and operating cutting-edge, full-scale pilot GAC and resin treatment systems, funding the multi-million dollar effort, and securing positive communications with MassDEP and water customers.

MassDEP should not be tempted to reduce the proposed 20 ppt PFAS MCL just because RI is proposing an MCL of 10 ppt for the weighted sum of six PFAS (with an explicit acknowledgement of the health benefit and cost uncertainties).  Instead, MassDEP should continuously rethink the alleged health risks posed by PFAS in drinking water that American’s have ingested since the 1950s, and recognize the relative paucity of evidence of human health impacts from low doses.  MassDEP should participate closely in the federal MCL process and be receptive to an increase in PFAS standards based on the EPA MCL and evolving science.

MassDEP should act as a clearing house on potential PFAS treatment technologies and permits, so PWS can avoid reinventing the wheel under the strain of legal and regulatory jeopardy.  The costs of PFAS treatment systems must be fully evaluated by MassDEP.  It is clear the $24 million in loan money from the Clean Water Trust available to all water supply projects, and not just for PFAS, is woefully inadequate.  Governor Baker and the Legislature must significantly increase funding for monitoring, treatment systems, and interconnections with clean water supplies.  Perhaps a share of the $3 billion surplus fund could be earmarked for PFAS and for replacing aging water mains now on life-support.  MassDEP should train PWS and consultants how to properly sample groundwater for PFAS testing.  MassDEP must certify more laboratories to test for low concentrations of PFAS in drinking water samples.

PWS are understandably concerned what new contaminants will emerge from UCMR4, and whether the expensive PFAS treatment systems will be capable of addressing a new suite of contaminants.  PWS also wonder if the coronavirus pandemic that is crippling the world impacts the delivery of safe drinking water.  The CDC and media bombard us with daily advisories on the rapidly increasing victims, and containment strategies and tactics (handwashing, sneezing, masks, disinfection, fist bumping instead of handshaking, travel bans, empty sporting venues, testing and quarantines).  Water supply professionals should take some comfort that the virus is only spread person-to-person during close contact, through inhalation of respiratory droplets from coughs or sneezes, handshakes, and touching the face.  The CDC, WHO and other experts advise that the virus is unlikely to be in raw water, and modern drinking water plants are already equipped to remove and disinfect viruses through filtration, chlorine, and ultraviolet processes.  Coronavirus will not be delivered through the drinking water distribution system to our faucets. 

MWWA is coordinating a weekly conference call with MassDEP and PWS on COVID-19 issues.  MassDEP has posted an initial FAQ for water systems that will be updated to include EPA guidance and additional concerns from PWS.

For the near future, the coronavirus will take the hot klieg light off PFAS.  Still, PWS will need to act eventually and expeditiously, in consultation with MassDEP, to plan, design, permit, purchase, and secure approval for a PFAS treatment system that will reliably produce drinking water that meets the MCL standard to be promulgated in 2020.  PWS should assemble their compliance teams now. 

John Shea

March 2020

 

For more information about PFAS:

  • The PFAS Zone. Peter F. Durning, Esq. (2019).  This tongue-in-cheek editorial riff on The Twilight Zone, explores the discomfort of Public Water Suppliers (“PWS”) and their customers during the time when MassDEP was just proposing MCP cleanup standards and an MCL for PFAS in drinking water.  Even without binding standards, MassDEP warned PWS to plan for the design and construction of expensive treatment systems to meet the proposed 20 ppt standard.  Here is the link to the May 2019 Newsletter article.
  • The Journal of the New England Water Works Association (Volume 133, No. 4, December 2019) published an excellent article on PFAS: “PFAS Toxicology – The Science Behind the Variation in Drinking Water Standards” that describes how state agencies are using toxicological evidence and uncertainty factors to establish enforceable MCLs for the PFAS compounds. Here is a link to the abstract on ProQuest.

Menino Legacies

 

           Thomas M. Menino, the longest serving, beloved 53rd Mayor of Boston (1993-2014), had many career accomplishments, some of which are covered in his memoir, Mayor for a New America (2014): his 2011 Climate Action Plan; the 2010 launch of the Innovation District on the South Boston waterfront; the transformation of Beantown to Greentown with LEED construction, tree planting, and recycling initiatives.  At least three achievements enjoy legacy status in 2020.

Initiative on Cities

            After his retirement in 2014, Mayor Menino was appointed Professor of the Practice of Political Science at BU and served as Co-Founder and Co-Director of the BU Initiative on Cities, an urban leadership research center bridging the gap between the academic study of cities and the real world practice of urban governance.  He created the Menino Survey of Mayors, a survey of the most pressing challenges that keep U.S. mayors awake at night.  The 48-page sixth edition 2019 Survey (www.surveyofmayors.com) covers infrastructure priorities, mobility and public safety, car culture, the changing nature of work, opportunity zones and climate change.  There are some noteworthy results.  Forty-five percent of mayors believe infrastructure is the most significant issue, and the “big ticket” items need investments in water, wastewater and stormwater.  Seventy percent think cities must have a strong role in reducing the effects of climate change, even if revenues are sacrificed or financial resources are expended.  Seventy-six percent believe cities are too dependent on cars and 66 percent believe cars are the largest source of greenhouse gas emissions.  Surely, the 2020 Survey will consider the municipal and business impacts of and responses to the coronavirus.  It is disappointing to consider the lost opportunity for critical infrastructure funding.

Boston Wetland Ordinance

            In January 2013, Mayor Menino directed the Conservation Commission to recommend guiding principles for drafting a local Wetlands Ordinance to address Boston’s vulnerability to the effects of climate change and coastal flooding, and to ensure developments around Boston Harbor take appropriate cost-effective measures to prepare for the foreseeable effects of climate change on safety and the economy.  In August 2013, the Conservation Commission issued Recommended Guiding Principles, including review of projects for the effects of sea level rise within Land Subject to Coastal Storm Flowage (LSCSF) and the Buffer Zone, and compliance with to-be-developed performance standards for more intense and frequent storm events throughout the project’s life cycle.  In December 2019, the Boston City Council and Mayor Walsh approved a Wetlands Ordinance with a goal to protect Boston against climate change impacts and to promote climate resiliency.  Applicants, lawyers and consultants wonder how quickly the Commission can adopt appropriate implementing regulations and maps for Inland and Coastal Flood Resilience Zones, especially with the suspension of governmental functions due to the coronavirus.

            For the Coastal Flood Resilience Zone, the Commission has discretion to determine whether the area beyond LSCSF “has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to seal level rise (SLR) within approximately the next 50 years.”  For the Inland Flood Resilience Zone, the Commission has discretion to determine whether the area of land beyond Land Subject to Flooding “has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years.”  Applicants will need to muster permit teams with the engineering, environmental science, and meteorological expertise to predict SLR and flooding.  These new evidentiary requirements will be fodder for project opponents challenging the science of predictive climate change and effects that will trigger debates, delay and appeals.  The Ordinance creates a Waterfront Area within the buffer zone to resource areas and allows the enlargement of the MassDEP Wetlands Protection Regulations Riverfront Area from 25’ to 200’.  The Commission’s jurisdiction is expanded to regulate activities which will “pose a significant threat to alter” resource areas, even if such work is not within resource areas or buffer zones.  This arguably allows the review of traditionally upland, non-jurisdictional areas under the Wetlands Protection Act.  Applicants have a burden of proof “by a preponderance of evidence that the work proposed…will not have an unacceptable significant or cumulative adverse effect upon the Resource Area Values protected by this Ordinance.”  The Commission should adopt regulations with objective criteria for SLR and flood elevation 50 year predictions to guide an otherwise discretionary decision by the Commission.

Harbor Ferry Service

            Water transportation via ferries, water taxis and shuttles in Boston Harbor serves commuters, convention attendees, airport travelers, and Encore gamblers in all seasons and weather conditions.  Tourists and recreationists use ferries.  In 2002, Mayor Menino released the “Long Island Limited Public Access Plan” which recommended water-based access as the best means for Boston to establish public access to Long Island, to limit impacts to Quincy neighborhoods, to address the inadequacies of the then existing land-based bridge, to protect people using the existing health facilities, and to preserve the natural, historic and archaeological resources on Long Island.  Fast-forward to October 2014, when Boston abandoned the old health facilities, and in 2015 demolished the bridge.  In 2018, Boston proposed to place a $100 million new bridge on 70-year old concrete piers that show deterioration, and which need an additional 75-year design life.  Opponents to the new bridge and pier reuse project argue for the use of ferries (and helicopters in medical emergencies) to access the yet-to-be designed addiction health care facility.  There is litigation challenging the adequacy of Boston’s alternatives analysis which did not fairly consider the reliability and feasibility of the use of ferry service to transport patients and support services to Long Island.  Mayor Menino, the Champion of Neighborhoods, was prescient in his endorsement of ferry service to Long Island in the 2020s and Beyond.