NEWS

Environmental Law Update – Summer 2016

In June, President Obama signed into law a revised version of the Toxic Substances Control Act (TSCA).  Originally passed in 1976, TSCA was designed to have EPA evaluate chemicals to determine if their use required further regulatory control.  As TSCA was implemented it came under considerable criticism because it required the government to have evidence that a chemical posed a risk before it could require testing which could result in greater regulatory control. The new TSCA changes this approach and mandates a review of chemicals in commerce and a requirement that all new chemicals must be assessed against health-based standards – rather than under a cost-benefit standard in the original legislation.  On June 29, 2016, EPA released its First Year Implementation Plan under the revised TSCA.  The aggressive plan includes a timeline for establishing new rules under the legislation including regulations for setting criteria to identify high priority chemicals and an “Inventory Rule”, that would require industry to report the chemicals it manufactured or processed in the previous ten years.  The First Year Implementation Plan also set a schedule for the continuation of on-going projects to identify risks from TCE and chemicals involved in paint removing applications, especially the chemicals methylene chloride (MC) and methylpyrrolidone (NMP).

One of the few times that the Obama administration and Congress were able to find common ground last year resulted in a dramatic increase in fines under federal environmental statutes.  The Bipartisan Budget Act of 2015 included a provision to amend the Federal Civil Penalties Inflation Adjustment Act of 1990 (Sec. 701 of Public Law 114-70).  The amendment included a “catch-up” provision that enabled agencies to adjust their penalties to account for inflation since the date the specific penalty was enacted or previously adjusted.  There was a 150% cap placed on the rate of increase, but many of the penalties under the environmental statutes administered by EPA increased dramatically.  For example, penalties under the Clean Water Act for permit violations under § 1319(d) increased from $25,000 per day of violation to $51,570.  Similarly, administrative penalties under CERCLA increased from $25,000 to $53,907 and from $75,000 to $161,721 respectively.  On July 1, 2016, EPA released the Interim Final Rule that includes the Table that will be incorporated in 40 C.F.R. § 19.4 with a complete rundown of the environmental statutes and fees.  Going forward we will likely see continued increases because the Act implements annual reviews of statutory civil penalties and allows agencies to make annual adjustments without going through the rulemaking protocols of the Administrative Procedures Act.  We will also see settlements demands dramatically increase in NPDES citizen suits under the CWA.

This Spring, Governor Baker announced that he is directing MassDEP to proceed with the steps to have the state administer the National Pollutant Discharge Elimination System (NPDES).  Massachusetts is one of just four remaining states that do not administer the federal NPDES program at the state level.  Taking over the local administration of the NPDES program will be a multi-year process, but MassDEP has started the process.  Hopefully more local control will lead to more responsive interactions between the regulators and the regulated community, as the state and industry work together to implement best stormwater management practices for the benefit of our water resources.

In May, the Supreme Judicial Court reviewed the state’s compliance with the requirements of the Global Warming Solutions Act (GWSA) in Kain v. DEP.  The SJC held that MassDEP failed to implement the GWSA because the agency did not “promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

In August, MassDEP released proposed draft revisions of the Air Regulations at 310 CMR 7.00.  The topics addressed by these proposed regulations include: (a) establishing thresholds for greenhouse gas emissions that will require a Plan Approval; (b) requiring Plan Approvals for non-major modifications of existing Prevention of Significant Deterioration (PSD) permits; (c) updates to Reasonably Available Control Technology (RACT) requirements for volatile organic compounds; and (d) revised procedures for administrative review of an air permit issued by MassDEP.  The comment period on the proposed regulations closes on Monday, September 26, 2016.

A Call To Action

Each September through November, volunteers participate in COASTSWEEP, a state-wide coastal cleanup of marine debris.  Sponsored by MassCZM in coordination with the Ocean Conservatory’s International Coastal Cleanup, individuals, families, organizations and companies collect and catalogue the waste defiling our beaches and waterways, identify the sources of the debris, and act to stop ocean dumping.  Our clients spend billions to build homes and businesses and to recreate in the coastal zone that is under constant attack from trash, primarily from land-based sources (washed out to sea by rivers, streams and storm drains).  Plastics pose the greatest risk to marine wildlife (seabirds and turtles).  Marine debris damages the health and safety, economics, and aesthetics of those who live, work and play along Massachusetts’ 1,500 miles of coastline.

We shouldn’t wait for the islands of ocean garbage to landfall; or for syringes, feces and nasty floatables to wash up on our beaches (as happened in Quincy prompting the cleanup of Boston Harbor).  We encourage our clients, consultants and friends to join in an important opportunity to make a difference by cleaning up fishing nets, lines, traps and buoys, plastic bags, and consumer products that desecrate our marine environment.  To learn more about eye-opening marine debris statistics and oddities, cleanup events, and organizing, joining or sponsoring a team, go to MassCZM’s COASTSWEEP site.

Embrace your stewardship!

Thomas A. Mackie, Esq., to Chair Environmental Business Council of New England

Thomas A. Mackie, Managing Shareholder of the Boston environmental law firm Mackie Shea, PC, has been elected Chairman of the Board of the Environmental Business Council of New England. A Board member for 13 years, Mackie has most recently served as Vice Chair of Membership on the Executive Committee of the Board of Directors.

On his election Mackie said “I am thrilled to serve as Chairman of the EBC, an organization that has ably served the environmental and energy business sector for over 25 years.”

Attorney Mackie is an environmental business lawyer. For more than thirty years he has provided advice to businesses and municipalities facing complex environmental issues. He handles a wide variety of environmental matters and business transactions.

High Court Declares MassDEP Deficient in Regulating Greenhouse Gases

Yesterday, in Kain v. Department of Environmental Protection the Supreme Judicial Court declared that the MassDEP had failed to properly implement the requirements of the Global Warming Solutions Act. Specifically, the Court found that the department is required “to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

The Court found that although the MassDEP’s Regional Greenhouse Gas (“RGGI”), low emission vehicle (“LEV”) and sulfur hexafluoride leak regulations were “important to the overall scheme of reducing greenhouse gas emissions over time, they do not fulfill the specific requirements of” the Global Warming Solutions Act.

It remains to be seen how the MassDEP and the legislature will react to the decision. Will the MassDEP begin a whole new round of regulatory initiatives mandating greenhouse gas emissions reductions over a wide array of sources or will the legislature reconsider the economic and environmental impact of a the mandate of the Global Warming Solutions Act?  Which ever way the Administration and legislature eventually choose to go, this case opens up a whole new spectrum of issues for project proponents, opponents and regulators.  At a time where the MassDEP’s budget is continuing to shrink, has lost many senior staffers to early retirement and is proposing to take on the NPDES permitting program, one wonders how it will take on the herculean task of regulating greenhouse gas emissions across a broad array of sources.  One saving grace in the decision, on which the Department may hang its hat, is the Court’s observation that “there is nothing in the statutory language to indicate that the department must regulate every source of emissions in the Commonwealth” and that “the department has discretion to select what sources of emissions it will regulate . . .”

If you would like to discuss any of these observations, please do not hesitate to contact us.

For questions, call or email Tom Mackie.

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.