BBA and EBC welcome the new EPA Regional Administrator Alexandra Dunn

Tom Mackie and Peter Durning were honored to be a part of the Boston Bar Association and Environmental Business Council of New England’s co-sponsored program on February 15, 2018 welcoming the new EPA Regional Administrator, Alexandra Dunn.

Tom, Chair of the EBC, gave opening remarks welcoming over 200 guests from the legal and environmental consulting community to the event.

Peter, the Co-Chair of the BBA’s Energy and Environmental Law Section, provided closing remarks and a sincere thank you to Regional Administrator Dunn, following a 40-minute presentation and a robust question and answer period.

In her speech, Alex Dunn stressed the need to address core water quality concerns by focusing on nutrients in stormwater, stormwater runoff, and water infrastructure projects.  She also outlined other initiatives for her tenure as Regional Administrator, including emerging contaminants, environmental justice, interstate air shed issues, and finally closing out and potentially redeveloping the remaining Superfund sites in New England.

Proposed Air Regulations

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

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.