Tag: Judicial Decisions

Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment). Read More → “Environmental Law Update – Fall 2017”

Greenhouse Gas Initiative After Kain v. DEP

Following the SJC’s ruling in Kain v. DEP that MassDEP had failed to properly implement the Global Warming Solutions Act which required regulations that “establish volumetric limits on multiple sources of greenhouse gas emissions sources (that) decline on an annual basis,” Governor Baker issued Executive Order No. 569 that required inter alia MassDEP to promulgate regulations to satisfy the 2020 state-wide carbon reduction targets. MassDEP has issued draft regulations designed to obtain greenhouse gas reductions in the natural gas, transportation and electricity generation sectors. The final regulations are expected by August 2017. The proposed GHG regulations require reductions:
• in CO2 emissions by Mass DOT and the MBTA and from state fleet vehicles;
• in sulfur hexafluoride emissions from leaking gas-insulated switchgears by National Grid and Eversource;
• in methane emissions from gas mains and service lines; and
• GHG emissions from large power plants (23 existing and all new facilities).
The regulations would increase “clean energy” (renewables and hydropower) from 16% in 2018 to 80% in 2050 provided by retail electricity providers, distributors, competitive suppliers and municipal light plants through the use of clean energy credits.

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.

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.

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.