NEWS

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.

 

Winter 2020 Firm Activities and Successes

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

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

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

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

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

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

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

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

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

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

 

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


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

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

 

 

Waste Wars: How the 2030 Solid Waste Master Plan Is Shaping the Future of Trash in MA

 

All you have to do is point,” claims 1-800-Got-Junk. Well, not exactly, at least not in Massachusetts.  Here, we study our trash, sort it, treasure it, and, more recently, debate it.  And that is not a bad thing, at least for some of us. If you love trash as much as we do (or even if you hate it), then by all means, read the more than 85 comments that have been filed on MassDEP’s draft 2030 Solid Waste Master Plan.  

Slogging through the 117 pages of comments can be tedious, but to us they are informative, entertaining, and, most importantly, illuminate the huge divide between industry, environmentalists and public officials on this otherwise mundane topic.  Luckily, you can read this absolutely unbiased and neutral summary.  Even better, you can call any one of us here at Mackie Shea Durning, PC to get the inside scoop on the state of waste in the Commonwealth.

The governing statute, M.G.L. c. 16, § 21, passed as part of the Solid Waste Act of 1987, St. 1987, c. 584,  provides, in part, that: “[t]he comprehensive statewide master plan referred to herein shall describe, to the maximum practicable extent, a short and long-range program for disposal of solid waste throughout the commonwealth, the solid waste facilities which the department determines to be necessary or convenient to the disposal of such waste in a manner which protects the public health, safety and environment and is financially sound, and the funding for the development of such facilities which the department finds to be reasonable necessary.” In brief, we believe that the draft 2030 Master Plan meets this legal threshold, even if it relies upon out-of-state disposal facilities as “necessary or convenient to the disposal of such waste  . . .” Nor do any of the commenters claim that the MassDEP has failed to fulfill its statutory mandate.  However, some commenters assert that the Department is obligated to go further in order to satisfy the greenhouse gas reduction requirements of the Global Warming Solutions Act.  For example, industry commenters decry the fact that about 21% of our waste is exported out-of-state, an expensive proposition with a large carbon footprint. They complain that the moratorium on new energy from waste capacity increases greenhouse gas emissions when waste is hauled long distances to out-of-state disposal facilities.  Environmental organizations counter that continued reliance on landfilling and combustion, as opposed to waste reduction and reuse, creates its own greenhouse gas problems.  

The principle divide in comments on the draft 2030 Master Plan is between industry pleas to lift the moratorium on new waste to energy capacity in order to improve in-state disposal capacity, countered by environmentalists’ insistence that to truly achieve their “Zero Waste” goal, no new capacity should be developed and that all existing waste to energy plants and landfills should be shuttered.  

The draft 2030 Master Plan really does not directly address either of these divergent points of view.  It certainly embraces the core concept of waste reduction by targeting a 90% reduction in disposal by 2050, but it also pragmatically recognizes the trend of increasing export of waste to distant states.  Since we face diminishing in-state capacity to trash the trash, and apparently little appetite in the public or private sector to take on the challenges of developing a new end facility to handle the dregs here in the Bay State, the draft 2030 Master Plan essentially acknowledges that rail is rapidly becoming a critical component of the state’s solid waste infrastructure.  The overwhelming industry trend right now is to permit rail handling facilities intended to take advantage of the lower rail transportation costs to landfills with large capacities and lower tipping fees in Ohio and other distant states, which the Commonwealth officially deems to be available capacity for Massachusetts waste. (While the majority of Bay State waste will head for the mid-west or south, Massachusetts will continue to truck a fair amount of waste to Waste Management’s Turnkey Landfill, just over the border in Rochester, New Hampshire, and to the landfills in Western New York State.)

Net Export Policy:  Back in the day, one of the policy goals of the Beyond 2000 Master Plan was that “on balance we should be neither a net importer nor a net exporter of trash.”  By the time the 2010 Master Plan entitled “Pathway to Zero Waste” was finalized in 2013, the MassDEP’s focus had shifted from providing for our own disposal capacity to “reducing waste and by recycling and composting more, [so that] we can reduce our need for overall disposal capacity and reduce the amount of waste that we will need to ship to other states for disposal as Massachusetts disposal capacity diminishes.”

Long gone now are those Yankee philosophy days “that we should take responsibility for managing our own solid waste.”  (If you nostalgically yearn for those days, I have a Victrola and some 78 records I would be happy to sell you.) Both industry and environmental groups criticize this de-facto export policy, for diametrically opposed reasons. Industry identifies the risk of import restrictions or market changes outside of Massachusetts’ control; whereas, environmental groups fear that continued exports will create a system with a vested interest in continued export for disposal that will undercut domestic waste reduction initiatives.

Recycling/MRFs/Organics:  Given its continued reliance on recycling, it is ironic that the draft 2030 Master Plan really does not grapple with the effects of China Sword on the recycling markets. Rather than take on the difficulties of the collapsed international market in recycled commodities, the Department is shifting its focus to remedies at home to try to improve the quality of recycled materials and develop markets.  To do so, it will develop working groups to produce comprehensive plans to foster source reduction and reuse opportunities and the development of markets.  The Department also intends to continue to use existing tools, such as grants and loans and new collaborations/partnerships to develop markets for food material, furniture and other bulky materials, glass, and textiles.  Commenters emphasized the need to invest further in recycling based, in part, upon the conclusion of the Massachusetts Materials Management Capacity Study that we are using 100% of available in-state recycling capacity.  (One would expect that we would have plenty of recycling or material recovery facility (MRF) capacity, given the relatively low permitting barriers to entry, but the unstable commodities markets for recycled materials appears to have stifled investment.)  Although most of the Department’s initiatives along these lines are universally supported, a proposal to mandate that all haulers provide recycling services raised concern among the haulers. As part of its waste reduction strategy, the draft 2030 Master Plan calls for a significant increase in organics diversion, including a planned expansion of the food waste disposal ban to capture much more organic material.  (The Department can take comfort in the fact that the Materials Management Capacity Study reported ample organics processing capacity.  However, the Department’s organics management framework has not escaped criticism by the environmental community, which argues strenuously against continued anaerobic digestion of food waste with biosolids, particularly in light of recent concerns about PFAS in biosolids and inability to reuse the resultant organic products.)

Energy from Waste:  Ten years ago in the “Pathway to Zero Waste,” the state opened its arms to new technologies, like pyrolysis and gasification. But nobody has taken up that opportunity. The moratorium on conventional energy from waste plants will remain in effect, except to the extent the seven existing plants will eventually need replacement.  However, continued reliance on energy from waste is not guaranteed. The Department intends to review the need for existing energy from waste facilities every five years and to require any replacement plants to meet more stringent efficiency and emission standards. As noted above, several environmental organizations are calling for the closure of the existing plants and that the partial lifting of the moratorium be ended, so that no new plants can be built.  The commenters continue to assert that emissions from energy from waste plants harm human health (particularly in the environmental justice communities, where some E from W facilities are located) and that they discourage the waste reduction and recycling that will be needed to achieve “Zero Waste.”

Landfills:  Although there is no official state mandated moratorium in place, there seems to be an unofficial municipal or private sector moratorium on new landfill capacity, since there are no current proposals for a new or significantly expanded MSW landfill.  Bourne and Crapo Hill are the two exceptions, with Bourne likely devoted to SEMASS ash and Crapo Hill husbanding its capacity for its Greater New Bedford Regional Refuse District member communities and limited outside MSW. Again, based upon their concerns over environmental and health impacts, the environmental organizations comments advocate for the phasing out of landfills as part of their vision for a Zero Waste future.

(It seems ironic to the author that Western and Central Massachusetts host only one MSW landfill, when just a decade ago, they were primo trash destinations.  What remains is only Waste Management’s Westminster Fitchburg landfill up north, with four years of remaining capacity. The Southeast Region hosts three municipal landfills: Bourne and Crapo Hill, mentioned above, and the small Middleboro landfill, run by Waste Management.  Nantucket takes care of island MSW.  And, of course, the Boston area, encompassed in the Northeast Region, would never agree to host an MSW landfill. Apparently, until Zero Waste is achieved, Hubsters will have to remain content to have their trash shipped out-of-state or converted to energy at one of the three energy-from-waste plants in the Region.)

New Waste Bans:  Within the next few years, the Department is going to propose additional bans on the transfer and disposal of organics, and perhaps mattresses and textiles. Commenters were generally very supportive of the state’s intention to double down on the existing organics ban to make it applicable to generators of one-half ton per week of food waste, which will capture many more generators and more organics volume than the existing one-ton per week applicability threshold.  However, certain environmental organizations generally argued that the state should go further and implement a ban on disposal of any food waste.  At least one industry commenter advocated for loosening of the restrictions on use of digestate from on-farm digesters.

Extended Producer Responsibility:  We would be remiss if we did not praise the 2030 draft Master Plan’s overarching goal to reduce waste 90% by 2050 as both good and ambitious. The goal relies, in part, on extended producer responsibility requirements that will admittedly require legislation.  Because Massachusetts is only a small part of the wider economy, ambitious plans to require companies, such as Amazon (whose gross sales equate to about one-half of Massachusetts’ GDP), to reconfigure all of its packaging, are unrealistic.  But less ambitious take-back initiatives, for paint, electronics and carpet should be achievable.  While some of these changes may isolate Massachusetts in the short-term, in the long-term, the Commonwealth will be able to take advantage of its early adopter status.  In a preface of legislative battles to come, comments from packaging producers embraced the Department’s use of “pay as you throw” programs and increased support for recycling, but did not endorse any form of packaging producer responsibility legislation.  

Climate Change:  Achieving the waste reduction goal will be key to the Commonwealth actually living up to the mandate of the Global Warming Solutions Act, to reduce GHG emissions 80% by 2050.  As in the case of waste export, both environmental groups and industry commenters jumped on the GHG reduction bandwagon, but for very different reasons.  Pragmatically expecting the need for continued waste disposal, industry commented that development of in-state capacity is essential to reduce GHG emissions from long-haul transportation (and E from W touted its GHG advantages over landfilling).  In a more puritanical approach, environmental groups want to eliminate waste disposal entirely to avoid the GHG emissions associated with excess production, consumption and disposal of goods.  Regardless, the changes in producer responsibility and materials management required to meet the MassDEP’s 90% waste reduction goal will pale in comparison to the economy-wide changes necessary to reduce GHG emissions to levels called for in the Global Warming Solutions Act. 

Whether future legislators and governors will have the political will to make the requisite drastic changes, is in serious doubt.  It was not that long ago, when the embattled Fall River Mayor backed off the City’s controversial purple bag “pay as you throw” program on the eve of his recall election.  Imagine the political backlash when voters are required to leave their cars at home and take mass transit to work.  

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

Town of Concord’s water supply at Nagog Pond.

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

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

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

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

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