NEWS

Firm Activities – Summer 2016

In June, Tom Mackie was named the Chairman of the Board of the Environmental Business Council of New England (EBC).  This was in recognition of the time and energy Tom has dedicated to the promotion of collaboration on environmental issues through the EBC.  In addition to serving as a board member, Tom was very active in several EBC programs this year, including a thought provoking presentation on the regulation of construction and demolition waste to energy facilities during the C&D Summit in January.  In addition to participating in EBC programs on anaerobic digestion and recycling initiatives, Tom was a panelist during a program with the Secretary of Energy and Environmental Affairs, Matthew Beaton, and a moderator for a presentation by MassDEP Commissioner Marty Suuberg.  Finally, Tom revised his Solid Waste Law and Regulation chapter in MCLE’s Environmental Law treatise.

In May 2016, John Shea was a co-presenter at a Half-Moon Bay program on Wetlands Law and Compliance along with wetlands scientist, Matt Schweisberg. John also completed a comprehensive revision of his Hazardous Waste Cleanup Law chapter in MCLE’s Environmental Law treatise that will be out at the end of the year.  John recently served as a hearing office for the Taunton Board of Health for two solid waste facility site assignments.

Peter Durning has been named a co-chair of the Environmental Section of the Boston Bar Association for the 2016-2017 term.  In May, Peter was a co-presenter with the current Section Co-Chairs, Bob Fitzgerald of WilmerHale and John Beling of MassDEP in a “Fundamentals” program for new lawyers discussing environmental permits and appeals.  Peter also moderated a program on whether Boston should elect to participate in the Community Preservation Act, M.G.L. c. 44B.

Noreen Ruggiero continues to spear head the firm’s efforts with the New England Center for Homeless Vets and the Jimmy Fund.

Status of MassDEP Regulatory Review Under EO 562

Shortly after his inauguration, Governor Baker ordered all state agencies to review “each and every regulation” against an ambitious set of criteria to “reduce the number, length, and complexity of regulations, leaving only those that are essential to the public good.” Executive Order: 562 “To Reduce Regulatory Burden” required that each Agency shall sunset all its regulations on or before March 31, 2016.

Despite this opportunity, the regulated community submitted only a handful of written requests for regulatory changes to the EOEEA (which administers over 125 environmental regulations). Thus, it is not surprising that MassDEP’s Preliminary Regulatory Recommendations apply to only 19 of the 64 regulations it administers.
Read More → “Status of MassDEP Regulatory Review Under EO 562”

EPA’s ECHO Website Opens a Window into Your Industrial Facility

Have you Googled yourself lately?

You might find race results from an old turkey trot or an article about an awards ceremony, or you might find unflattering (or compromising) photos of yourself – particularly if you went to college in the age of digital cameras on cell phones.

But how often have you Googled your business or industrial facility to see what the web reveals about your environmental compliance history?

With the continued emergence of technology and the federal government’s push for greater transparency, most of the environmental compliance documentation maintained by the Environmental Protection Agency (“EPA”) is now available on the web.

EPA’s Enforcement and Compliance History Online or “ECHO” database curates and correlates several different federal reporting regimes and federal environmental compliance data for individual industrial facilities in one place. [http://echo.epa.gov/]

The database includes filings under RCRA, the Clean Air Act, and the Clean Water Act, as well as data from the Toxics Release Inventory and Greenhouse Gas Reporting Program, among several others.  In addition to stating a facility’s compliance history, including required periodic reports and disclosures, the ECHO website also includes information on inspections and enforcement actions conducted by EPA.

All of this information is easily available to the general public with a simple search.  The data can be accessed by company or facility name, but it is also searchable by state, city or ZIP Code.  This capability makes it easy for individuals to learn about facilities in their neighborhood, or perhaps to allow competitors to find out information about a rival’s compliance history.

Another significant use for this database is by groups seeking to bring citizen suit enforcement actions against industrial actors.  For example, in the Clean Water Act arena, the Conservation Law Foundation (“CLF”) and Clean Water Action, have both been very active in bringing citizen suits under the Clean Water Act against industrial facilities that either failed to file under the multi-sector general permit (“MSGP”) for discharges to waters of the United States, or facilities that have permits, but have not met their reporting obligations, or their obligations to undertake corrective actions.

Simply using the information available through the ECHO database CLF, Clean Water Action, and others can identify industrial facilities that should have permits under the National Pollution Discharge Elimination System (“NPDES”) program.  Using the ECHO search tools, the citizen suit organizations can quickly find the reporting history for any industrial facility that holds a NPDES permit.  This is particularly relevant in Massachusetts and New Hampshire where EPA is the NPDES permitting authority.

Just letting their fingers do the walking from their desktop computer, the environmental organizations can assess whether a facility has filed the requisite number of quarterly reports, complied with its annual reporting obligations, and even assess whether or not the facility has exceedances of benchmark monitoring values.

As an illustration, here are the ECHO search results for industrial facilities in Newburyport, MA.  A user can click on each orange marker and learn about the business’s compliance and enforcement history.  Since many of these facilities may have discharges that lead to waters of the United States, environmental organizations searching for Clean Water Act compliance might be particularly interested in canvassing this area for compliance targets.

After a quick assessment of the compliance history available from ECHO, it is easy for the environmental organization to prepare a 60-day notice letter and initiate the process of bringing a suit under the Clean Water Act.  Once that process is started, the environmental organization will stand in the shoes of the federal regulator and impose a financial penalty on the facility for failure to comply with the requirements of the MSGP.  In most instances, the environmental organization will also demand operational or structural changes to eliminate or reduce pollutants in a facility’s discharges, and require Supplemental Environmental Projects (“SEP”) related to the impacted water-body to offset impacts to the environment.  In addition, under the federal Clean Water Act, the environmental organizations are entitled to recover their attorneys’ fees and legal costs for bringing these private enforcement actions.  All of these components result in significant financial burdens on the target facilities.

With the new MSGP permit promulgated by EPA earlier this year, industrial facilities in MA and NH have even greater obligations to provide transparency for their compliance with the Clean Water Act.  The 2015 MSGP requires facilities to either post the contents of their stormwater pollution prevention plan (“SWPPP”) on the web, or include the contents of the SWPPP in the facility’s Notice of Intent for coverage under the 2015 MSGP.  The 2015 MSGP also requires online reporting of quarterly and annual monitoring events.  With the transition to all online reporting, all of a facility’s Clean Water Act reporting obligations will be available with the click of a mouse.

The 2015 MSGP set September 2, 2015 as a deadline for facilities with existing MSGP permit to file a new Notice of Intent for coverage under the new general permit.  For facilities with an existing MSGP permit, this is an easy target for citizen groups seeking to make a quick strike.  We are aware of two actions against industrial facilities simply for failing to meet the September 2, 2015 deadline for filing a new Notice of Intent under the 2015 MSGP.  Similarly, even though facilities may have met the benchmarking requirement of four consecutive quarters without any exceedance under the old 2008 MSGP, which allows the facility to transition to annual rather than quarterly monitoring, the new permit re-starts the clock and facilities must show a minimum of four consecutive quarters of monitoring data to demonstrate compliance with the benchmark values for the particular facility before shifting to annual reporting.

While the general availability of all this data sounds alarm bells about the tidal wave of compliance information on the web and the increased potential for citizen suit actions, there are also some business advantages that web-savvy companies can reap from this wealth of data.

For example, companies looking to make an acquisition can use the ECHO database to perform quick due diligence on an industrial facility before any formal deal negotiations take place.  A review of the ECHO database will allow a potential acquirer to identify good targets, or to recognize a facility to avoid, given their compliance history.

Similarly, companies in the certain industries can use the information available through ECHO to evaluate the compliance history of the facilities receiving their outputs as part of their due diligence obligations to establish defenses under the Superfund Recycling Equity Act (“SREA”).  Armed with a potential receiving facility’s compliance history under Federal environmental laws, an arranger can make an informed choice about whether or not to sell scrap products to a particular customer.  Generators of solid and hazardous wastes can also check the compliance status of handling and disposal facilities, perhaps avoiding the cost of a full facility audit or the liability that would arise from shipments to a non-compliant facility.

Lastly, the ECHO database can also serve as a public relations tool.  Since this compliance data is available to the general public, industrial facilities should be aware of the potential public relations burden and benefit these disclosures can provide.

In addition to the importance of maintaining strong environmental controls, we recommend that industrial facilities monitor how their business information is presented in the ECHO database.  Proper management could lead to new opportunities and positive public relations, while lax attention to monitoring and reporting obligations could invite citizen suits to environmental organizations trawling the ECHO database for new victims.

Environmental Law Update – Fall 2015

In our Spring 2015 Environmental Law Update we predicted that there would be judicial and legislative challenges to the EPA and Army Corps’ new Clean Water Rule expanding the scope of jurisdictional waters of the United States.  The Rule seeks to codify existing criteria that EPA and the Corps have been applying on a case-by-case basis using the three alternative tests announced by the U.S. Supreme Court in Rapanos v. United StatesEven before the Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits challenging the regulation.

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Rule nationwide.  The morass of litigation prompted EPA to move to centralize pretrial proceedings in the District of Columbia.  On October 13, 2015, the United States Judicial Panel on Multidistrict Litigation issued an Order denying transfer because the various lawsuits will involve very limited pretrial discovery as the cases will be decided on the administrative record and will turn on questions of law on alleged exceedances of statutory and constitutional authority in promulgating the rule.  The EPA and the Corps have resumed nationwide use of the prior regulations by applying case law, policy and the best science and technical data on a case-by-case basis in determining which waters and wetlands are protected under the Clean Water Act.  On the legislative front, on November 4, 2015, over the threat of a Presidential veto, the U.S. Senate approved a resolution to nullify the Clean Water Rule.  “The more things change, the more they stay the same.”  Stay tuned.

Firm Activities – Fall 2015

  • Peter Durning has become a shareholder of the firm and is looking forward to his continued participation in the firm’s success and growth, his recent string of litigation victories and honing his legal skills in the water and wastewater sector.

 

 

 

  • Peter Durning deserves congratulations for his excellent work on the Planning Committees for the Boston Bar Association Annual Meeting Luncheon and for the Boston Bar Foundation John and Abigail Adams Ball. The firm was a sponsor of the Annual Meeting Lunch at which Governor Baker addressed the opioid crisis, funding the courts, and the visiting Medal of Honor recipients.
  • Tom Mackie has been elected to the Board of Directors of the Virginia Thurston Healing Garden in Harvard, Massachusetts and participated in organizing and riding in its First Annual Ride To Thrive Fundraiser. Despite a spill and visit to the emergency room, Tom is back on the bike.
  • Tom Mackie has been chosen to chair the Environmental Business Council’s Winter Garden Party on December 2, 2016.
  • Tom Mackie and Peter Durning co-authored an article on Restoring the Promise of the Permit Session published in Massachusetts Lawyers Weekly.
  • Tom Mackie moderated the EBC Program Series with MassDEP Commissioner Suuberg and the Southeast Regional Office Leadership on July 15, 2015 at the offices of Brown & Caldwell in Middleboro.
  • John Shea worked with the Massachusetts Water Works Association Legislative Committee to submit Comments on the Regulatory Review under Executive Order 562 to Commissioner Suuberg on changes to the drinking water regulations, the SWMI regulations and surface water quality standards; and to Secretary Beaton on streamlining MEPA review for expanded water withdrawals, revisions to interbasin transfer regulations, and revising water conservation standards.

Appreciation for Your Kind Words

For many years, our firm and its lawyers have been recognized for our accomplishments and skills by lawyer rating services like Martindale-Hubbell, Chambers USA-America’s Leading Lawyers for Business, Best Lawyers in America, U.S. News and World Report-Best Lawyers and Best Law Firms, and SuperLawyers.  These recognitions are very humbling and gratifying because the ratings are based on third-party validation by independent research, client referees and peer reviews.  The rating services rank law firms and lawyers on specific qualities such as technical legal ability, professional conduct and client service.  It is rewarding for our boutique firm to be ranked in the same tier as the largest firms.  Some recognitions are totally unexpected like when John Shea was selected as Boston 2013 Environmental Law Lawyer of the Year.  We are careful not to believe our press, rest on our laurels, or wear our super hero capes in public.  We pledge to work hard with the highest ethical standards, to continue our winning tradition and to enjoy your trust and praise for years to come.

MassDEP’s 40th Anniversary

MassDEP (then DEQE) opened for business in 1975, and for four decades has protected our natural resources, public health and quality of life with dedication, hard work and innovation.  For 35 years, our lawyers have been privileged to work with MassDEP’s many talented and dedicated leaders and staff to permit projects, and to assist the agency in development of cutting-edge programs in waste site cleanup, solid waste and recycling, and water resources as participants on task forces, committees and stakeholder groups.  Under the leadership and excellence of Commissioners from Tony Cortese to Marty Suuberg, MassDEP has tackled tough environmental problems, engendered an ethic of excellence, and built strong partnerships with municipalities, industries and environmental groups.  We expect to help celebrate the golden anniversary in 2025.  Congratulations and thank you MassDEP.

Au Revoir

MassDEP’s ranks have been depleted by about 120 talented staff and leaders by Governor Baker’s budget-trimming early retirement plan.  John Shea spoke at two regional retirement celebrations, and lamented the departure of dedicated environmental professionals, seasoned advisors, and many great friends.  We wish the retirees well as they enjoy the fresh air, clean waters and pristine beaches they fought so hard to protect.

Firm Successes – Fall 2015

  • Tom Mackie and Peter Durning successfully represented MGM Redevelopment LLC in Land Court against a challenge by an abutter to MGM’s proposed Springfield Casino to the proposed dimensions of the Springfield Casino Overlay Zoning District. The City of Springfield was ably represented by City Solicitor, Ed Pikula.
  • Tom and Peter  won a case in the Massachusetts Appeals Court that affirmed their Land Court victory reinstating building permits for a $200M 35 MW biomass power plant planned for Springfield that had been wrongfully revoked by the local Zoning Board of Appeals. They also successfully opposed a Petition for Further Appellate Review of the Appeals Court decision to the Supreme Judicial Court.
  • John Shea negotiated a Consent Judgment with the Attorney General’s Office for a heavy industry client which requires an upgrade of air emission controls that will establish nationwide BACT, operational and management improvements at three facilities, and the performance of two Supplemental Environmental Projects. A substantial portion of the civil penalty is suspended and will be forgiven upon achieving compliance milestones.  The negotiations took nearly three years.
  • John and Peter prevailed in a hotly contested MassDEP wetlands adjudicatory hearing in which the municipality and a ten resident group challenged our client’s stormwater management system for a 50-lot, high-end residential development.
  • John  negotiated a settlement in an adjudicatory appeal by an environmental organization of our municipal client’s groundwater discharge permit for upgrades and increased sewage flow to its wastewater treatment facility. The settlement agreement and modified permit requires increased groundwater monitoring and evaluation of nitrogen loads, development of a nitrogen offset plan for increased concentrations in a watershed flowing to an impaired embayment, and evaluation of nitrogen pollution reduction measures, including an ocean outfall, under the Cape Cod Water Quality Management 208 Plan Update.
  • After an adjudicatory appeal by an abutter, John and Peter obtained a Final Negative Determination of Applicability for minor changes to our clients’ fully approved and constructed home on the Dartmouth coast. The Presiding Officer and the MassDEP Commissioner determined inter alia that the LID roof runoff collection and watering system will not harm wetland resources.
  • John obtained a Water Quality Certification from MassDEP and a 404 Permit from the Army Corps for a stream relocation to facilitate the revitalization of a retail shopping center, and a state-of-the-art stormwater management and new riverfront habitat. The Corps’ approval requires “time of year” construction limits to protect potential habitat of the newly-listed endangered Northern Long-Eared bat.
  • Peter assisted a residents’ group in Marblehead to develop and implement a strategy that eventually convinced a neighbor to withdraw his planning board application to construct a grandiose garage/exercise/office structure on a portion of the jointly-owned, island roundabout.

Renewables Corner – Fall 2015

The Massachusetts Department of Energy Resources (DOER) is preparing draft regulations to include renewable thermal in the Massachusetts Alternative Portfolio Standard (APS) pursuant to Chapter 251 of the Acts of 2014.

The MassDEP has still not finalized its evaluation of wind turbine noise, which some wind energy advocates claim is stymying development of land based wind energy. In 2012 the MassDEP issued a Wind Turbine Health Impact Study  that stimulated a spirited discussion over the health effects of wind turbines including significant public comments and additional information. In response, in 2013 MassDEP convened the Wind Turbine Noise Technical Advisory Group (WNTAG) to provide advice on recommended changes to MassDEP noise regulations and/or policies as they apply to wind turbine noise. In July 2013, the MassDEP issued a Discussion Document entitled Potential Revisions to MassDEP Noise Regulations and Policy to Address Wind Turbine Noise.  Some in the field believe that the wind noise measurement techniques discussed by the MassDEP would inappropriately overstate the noise impact of turbines.  Unfortunately, since the Baker Administration has come into office, the MassDEP has not reconvened the WNTAG.

In May, the Baker-Polito Administration announced the launch of a new $10 million initiative aimed at making Massachusetts a national leader in energy storage. The Energy Storage Initiative (ESI) includes a $10 million commitment from the Department of Energy Resources (DOER) and a two-part study from DOER and the Massachusetts Clean Energy Center (MassCEC) to analyze opportunities to support Commonwealth storage companies, as well as develop policy options to encourage energy storage deployment.

In October, Entergy announced that Pilgrim Nuclear Power Station will close by June 1, 2019. Coupled with the planned shut down of large coal fired generating stations in the Commonwealth, this could open up the market for more renewable power.  However, it is likely that renewable energy producers in Massachusetts will face competition from Canadian hydro-power and new imports of natural gas, if the current Administration’s policies succeed.

Over the summer, Governor Charlie Baker filed two pieces of energy legislation that, if passed, will affect the renewable energy market.  In July, he filed An Act Relative to Energy Sector Compliance with the Global Warming Solutions Act, to diversify the state’s energy portfolio through the procurement of cost-effective, hydropower generation.  Among other things, the legislation will permit Massachusetts utilities to collaborate with other New England states, including Connecticut and Rhode Island, in the procurement of hydroelectric resources. Critics question whether a large amount of Canadian hydropower will crowd out other Massachusetts based renewable energy sources.  Ironically, others criticize republican Governor Baker’s proposal as a massive “re-regulation” of the deregulated energy market place and a “subsidy” for Canadian hydro-power.  In August, Governor Baker filed  An Act Relative to a Long-Term, Sustainable Solar Industry  to raise the private and public net metering caps two percent each, to six and seven percent, respectively. This represents a 50% increase for public entities, and a 40% increase for private entities, in the allowable amount of solar energy available for net metering credits. This increase will provide immediate support for projects being developed in service territories where the caps have already been reached, and provides the Department of Public Utilities with the authority to raise the caps further, as needed in the future.  Previously, the Administration announced a coordinated process with Rhode Island and Connecticut to issue a Request for Proposal (RFP) for clean energy resources. At the same time, the Governor instructed the DOER to commence a proceeding at the DPU to consider how the electric utilities can pursue gas capacity contracts that would improve winter reliability and lower winter electricity costs.  On October 2, the DPU issued its Order Determining Department Authority under G.L. c. 164, 94A that utilities can enter into such long term gas contracts to reduce electricity costs.

It’s Time to Restore the Promise of the Permit Session.

In the September 14, 2015 issue of Massachusetts Lawyers Weekly, Tom and Peter provide their opinion on recent judicial efforts to undermine the legislature’s intent in passing the Permit Session Statute. With this issue poised to go to the Supreme Judicial Court, this is a good time to restore the promise of the Permit Session.