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.

POTUS Has Trumped WOTUS Before SCOTUS

In our Spring and Fall 2015 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the “Rule”). The Rule sought to codify the criteria the agencies have applied on a case-by-case basis using the three alternative tests announced by the Supreme Court of the United States (“SCOTUS”) in Rapanos v. United States, 547 U.S. 715 (2006) to define the jurisdictional scope of Waters of the United States (“WOTUS”) under the Clean Water Act. As we predicted, industry groups, 30 states and environmental groups challenged the extension of EPA jurisdiction in federal district and appellate courts.  The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the Rule, and later agreed with the federal government that the Rule was reviewable exclusively in the circuit courts of appeal.  The SCOTUS agreed to resolve the jurisdictional fights over which federal court should hear challenges to the Rule.  Thus, the Sixth Circuit stayed the litigation over the merits of the WOTUS Rule until the SCOTUS decides the narrow jurisdictional question of which courts have jurisdiction to hear substantive challenges to the Rule.  SCOTUS arguments are scheduled for April with an expected June decision.  On April 3, 2017, SCOTUS denied POTUS’ request to stay hearing on the venue for the WOTUS review.

During the campaign, Donald Trump pledged to “eliminate the unconstitutional” Rule and to “direct the Army Corps of Engineers and EPA to no longer use this unlawful rule and related guidance documents in making jurisdictional determinations.”  The SCOTUS grant of review gave the POTUS time to decide how to eliminate the Rule.  On February 28, 2017, the POTUS decried the Rule as a “massive power grab” and signed an Executive Order to direct EPA Administrator Pruitt to begin the legal process to dismantle the Rule and to Attorney General Sessions to ask the court to delay a decision until a new regulation is released.  The process for withdrawing the Rule is lengthy, will require justification, be subject to public comment, and potential challenge in new lawsuits which may end up in the SCOTUS, that will include the POTUS’ newly appointed justice, Neil Gorsuch.  The Republican Congress could also scuttle the Rule legislatively.  (A non-binding resolution was introduced in the House of Representatives that supports the Executive Order.)  Congress could also defund EPA wetlands activities.

The Pruitt EPA will likely be less aggressive in enforcing Clean Water Act violations.  Massachusetts may not be as affected because it has a strong Wetlands Protection Act and many municipalities have Home Rule Wetlands Protection laws.

Until SCOTUS addresses the new Rule years from now, EPA and the Corps presumably will make WOTUS determinations using the Rapanos tests.  A Corps’ Jurisdictional Determination will in turn be subject to judicial review as “final agency action” under the SCOTUS decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc., 101 S. Ct. 1807 (2016).  Lawyers for industry, public interests, conservationists and environmental organizations will be fully employed for the next decade.

Delegation of NPDES Program

In this space in the August 2016 Newsletter, we heralded Governor Baker and MassDEP’s efforts to secure from EPA delegation to administer the National Pollution Discharge Elimination System (NPDES). Proposed legislation was sent to die in study at the end of 2016 legislative season by the Joint Committee on Environment, Natural Resources and Agriculture. On March 8, 2017, Governor Baker filed An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System that will allow MassDEP to administer the NPDES program as in 46 other states. The legislation will make changes to the Massachusetts Clean Waters Act, which are required for MassDEP to apply to EPA. The Fiscal Year 2018 budget proposal includes a $1.4 million “seed” investment to support the NPDES program. The appropriation will increase to $4.7 million in FY 2019. The initial funding will allow MassDEP to hire 12 new staffers to phase-in NPDES program development and conduct water quality analyses.
In addition to this legislation (if passed), MassDEP must demonstrate to EPA it has an effective plan for managing the NPDES program, the Clean Waters Act will meet federal requirements, and a funding plan is in place. EPA personnel and budget cuts proposed by the POTUS support the delegation plan. It is hoped that MassDEP will engage more closely with municipalities and other permittees, and be more flexible and collaborative in an interactive process that will consider what is technically and economically feasible to attain water quality standards. Delegation may also put MassDEP squarely in the litigation crosshairs of environmental groups which are unhappy with the manner or speed with which MassDEP implements the NPDES program

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The Demise of the Stream Protection Rule

The Republican Congress and the POTUS have stricken the Interior Department’s Stream Protection Rule that protected waterways from coal mining that was eight years in the making.  The rule would have imposed stronger requirements for avoiding coal mining practices that pollute streams and sources of drinking water, for restoring streams, and for reclaiming and replanting mined lands.  Testing and monitoring of streams near coal mines before, during and after mining were required.  On February 2, 2017, Congress employed a little-used tool called the Congressional Review Act to block the rule with a simple majority vote (House 228-194 and Senate 54-45).  On February 16, 2017, the POTUS became the first president in 16 years to sign a regulatory repeal resolution.  The rule would have protected 6,000 miles of streams and 52,000 acres of forest in Appalachia.

2017 EPA Construction General Permit

The August 2016 Newsletter summarized the 2012 CPG for stormwater discharges from construction sites disturbing one or more acres of land.  The CPG included requirements for using 2009 technology-based effluent limitation guidelines and new source performance standards for the construction and development industry (C&D Rule), non-numerical effluent limits for erosion and sediment controls, soil stabilization, dewatering and Stormwater Pollution Prevention Plans (SWPPPs).  The article also previewed the draft 2017 CPG.

EPA has issued the 2017 CPG, effective February 16, 2017.  All existing sites under the 2012 CGP must update SWPPPs and file a new Notice of Intent by May 17, 2017.  The new CPG adds to the 2014 CPG.  It covers demolition sites, sets new C&D non-numeric effluent limits, requires self-inspections, corrective actions, training, and electronic reporting.  There are mandatory stabilization measures based on the size of the disturbance and requirements for erosion controls based on design specifications.  Developers and property owners must recognize that having a multi-binder generic SWPPP on the shelf in the construction trailer is not enough to comply with the CGP.  The document must be tailored to fit the site; the contractor needs to designate the SWPPP as the project erosion “bible,” and train its staff and subcontractors to consult the bible when erosion events occur.

Gold nugget tip:  Designate an Environmental Monitor who checks the predicted rainfall every day and the erosion and sedimentation controls before and after the storm event, and has authority to direct needed repairs.

The Fate of the Environment in the Age of Trump

Since Trump’s inauguration, friends and colleagues have been asking, “what impact will President Trump have on environmental law?” Along with the rest of the nation (and world), we are waiting to see just how far Trump will push his anti-environment agenda.

Here are a few observations from the dizzying first 90 days:
Read More → “The Fate of the Environment in the Age of Trump”

…Oh, Boston you’re my home.

Since 1997, Red Sox Nation has celebrated home victories with the post-game anthem “Dirty Water,” the 1966 cynical paean to the Charles River and Boston Harbor.  “Well, I love that dirty water; Oh, Boston you’re my home.”

Beginning in the 1800’s, the Charles River and Boston Harbor were polluted by domestic, municipal and industrial wastes.  Raw sewage, chemical discharges, and leaching riverbank landfills turned the river into a toxic sluiceway flowing into the nastiest harbor in the world.
Read More → “…Oh, Boston you’re my home.”

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!

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 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.