Category: Client Advisory

EPA ISSUES NEW PFAS DRINKING WATER HEALTH ADVISORIES

How Low Can You Go?

The United States Environmental Protection Agency (“EPA”) released four new drinking water health advisories for per- and polyfluoroalkyl substances (“PFAS”) on June 15, 2022. 

NEW EPA Drinking Water Health Advisory Levels
Chemical Lifetime Health Advisory Level (ppt) Minimum Reporting Level (ppt)
PFOA 0.004 (Interim) 4
PFOS 0.02 (Interim) 4
GenX Chemicals 10 (Final) 5
PFBS 2,000 (Final) 3

In 2016, EPA issued a health advisory setting lifetime levels for PFOA and PFOS of 70 ppt. These 2022 new levels are significantly stricter and, as EPA warns, “are below the levels at which analytical methods can measure PFOA and PFOS.” These levels are also significantly below the maximum contaminant level (“MCL”) of 20 ppt for six PFAS chemicals (the “PFAS6”) set by the Massachusetts Department of Environmental Protection (“MassDEP”) in 2020. MassDEP’s PFAS6 include PFOA and PFOS but not GenX chemicals or PFBS. Although EPA’s health advisories are “nonenforceable and non-regulatory,” they can have the potential to influence additional regulatory responses from state authorities.

The new PFOA and PFOS health advisory levels are based on human studies in populations exposed to these chemicals, while the GenX chemicals and PFBS levels are based on animal studies following oral exposure to these chemicals. The PFOA and PFOS levels are interim while the EPA Science Advisory Board reviews EPA’s analyses, but “EPA does not anticipate changes that will result in health advisory levels that are greater than the minimum reporting levels.” EPA’s lifetime health advisories for GenX chemicals and Perfluorobutanesulfonic acid (“PFBS”) are final and are based on final EPA toxicity assessments completed in 2021.

If water sampling results exceed the health advisory levels, EPA recommends that drinking water suppliers undertake additional sampling to assess the level, scope, and localized source of contamination, work with state authorities to ensure compliance with state regulations, inform customers about PFAS levels in their drinking water, and take steps to limit exposure. EPA has published a separate fact sheet for public water systems.

“Show Me the Money”

In addition to the regulatory “stick,” EPA will provide a funding “carrot.”  EPA has invited states and territories to apply for the first $1 billion of Bipartisan Infrastructure Law grant funding to address PFAS and other emerging contaminants in drinking water.  The new funding comes from the Emerging Contaminants in Small or Disadvantaged Communities Grant Program and can be used to reduce PFAS in drinking water in communities facing disproportionate impacts. EPA will issue guidance later this year detailing eligible uses for the funds and providing more information on how water systems can apply for funding.

The new regulatory escalations have major implications for public water suppliers, private well users, MCP sites, and regulatory agencies.  MassDEP will review the advisory data, may participate in the Science Advisory Council review, and could consider revisions to the MassDEP ORSG advisory and drinking water and site cleanup regulations.  The water supply community and LSPs will face more uncertainties and challenges about how to cope with “Forever Chemicals”:  finding testing laboratories with certified analytical methods to measure parts per quadrillion, searching for cleanup technologies to remove quantum concentrations, and engaging in challenging public communications with customers, the general public, and the media about lifetime risks from very small exposures.

EPA ISSUES 2022 CONSTRUCTION GENERAL PERMIT

On February 17, 2022, the 2022 Construction General Permit (CGP) will take effect and replace the 2017 CGP. The CGP is a federal permit under the Clean Water Act (CWA) and the National Pollutant Discharge Elimination System (NPDES) that authorizes “stormwater discharges associated with construction activity.” These are defined as:

[A] discharge of pollutants in stormwater to waters of the United States from areas where earth disturbing activities (e.g., clearing, grubbing, grading, or excavation) occur, or where construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck chute washdown, fueling), or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants), are located.

Only those sites which discharge to “waters of the United States” fall within CWA jurisdiction and require a permit.[1]

The CGP applies to the “operator” of a construction site whose construction activities will disturb one acre or more of land (or less than one acre if part of a common development that will disturb one or more acres) in Massachusetts, where the United States Environmental Protection Agency (EPA) is the NPDES permitting authority. The CGP defines an operator as:

1. The party [that] has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications (e.g. in most cases this is the owner of the site); or

2. The party [that] has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit; in most cases this is the general contractor of the project).

The 2022 CGP provides permit coverage for five years. Operators must also certify to meeting certain eligibility criteria demonstrating that activities in the “action area” of their projects will not adversely affect any federally-listed endangered or threatened species or critical habitat. The action area includes all areas affected directly or indirectly by the construction activity and not merely the immediate area of the construction site.

The changes from the 2017 CGP are minimal and consist mainly of clarifications and additional specificity to certain permit requirements. The 2022 CGP Fact Sheet summarizes these changes in a chart at page 12. The EPA has also provided a redline of the changes. The key requirements of the CGP remain the same, however. These are, according to the EPA:

  • Develop a Stormwater Pollution Prevention Plan (SWPPP) and keep it up to date.
  • Complete and submit a Notice of Intent (NOI) to EPA via the NPDES eReporting Tool (NeT).
  • Implement erosion and sediment controls and pollution prevention practices throughout the entire construction project.
  • Conduct required inspections to verify compliance with permit. Inspections may only be conducted by a qualified person who has either: (1) completed the EPA construction inspection course and passed the exam, or (2) holds a current construction inspection certification or license from a program that covers the same core material as EPA’s inspection course.
  • Conduct routine maintenance and take corrective action to fix problems with controls or discharges.
  • Complete documentation of all site inspections, dewatering inspections, and corrective actions.
  • Comply with turbidity monitoring requirements for dewatering discharges to sensitive waters (if applicable).
  • Comply with any State, Tribal, or territory-specific requirements in Part 9 of the permit.

The EPA will host a webinar on February 24, 2022, at 1:00 p.m., to answer questions about the 2022 CGP.

For advice about how your activities may be impacted by the new CGP, please reach out to the attorneys at Mackie Shea Durning, P.C.

[1] “Waters of the United States” means the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; tributaries; lakes and ponds, and impoundments of jurisdictional waters; and adjacent wetlands. See 40 C.F.R. § 120.2(1). The precise scope and extent of “WOTUS” has been ever-changing since the U.S. Supreme Court’s split-decision in Rapanos v. United States, 547 U.S. 715, in 2006.

MEPA Office Issues Environmental Justice Regulations and Guidance

While some of us were enjoying the Feast of the Seven Fishes, the Massachusetts Environmental Policy Act (MEPA) Office left a few gifts under the tree: the first amendments to 301 CMR 11.00, the MEPA Regulations, in eight years came into effect on December 24, 2021.

The new regulations implement the environmental justice (EJ) requirements of Chapter 8 of the Acts of 2021, the Commonwealth’s landmark Climate Roadmap Act. These include a formal definition of an Environmental Justice Population, enhanced public involvement procedures, and a framework for analyzing environmental justice impacts during the MEPA review process. The Act requires an environmental impact report (EIR) for any Project that is likely to cause Damage to the Environment and is located within 1 mile of an EJ Population (or 5 miles if the Project impacts air quality), and mandates EJ-focused EIR components. The EIR must assess any “existing unfair or inequitable environmental burden and related public health consequences impacting the [EJ] population from any prior or current private, industrial, commercial, state, or municipal operation or project that has damaged the environment.”

If the EJ population is subject to an existing unfair or inequitable environmental burden or related health consequence, the EIR must identify any “(i) environmental and public health impact from the proposed project that would likely result in a disproportionate adverse effect on such population; and (ii) potential impact or consequence from the proposed project that would increase or reduce the effects of climate change on the environmental justice population.”

The Climate Roadmap Act required the Secretary of the Executive Office of Energy and Environmental Affairs (EEA) to promulgate certain regulations within 180 days. These amendments implement Sections 55-60 of the Act. Here are some highlights:

New EJ Definitions

The amendments incorporate the Climate Roadmap Act’s definitions of “Environmental Justice Population,” “Environmental Justice Principles,” “Environmental Benefits,” “Environmental Burdens,” and “Neighborhood,” and add a new term for the “Designated Geographic Area,” which encompasses the 1 mile/5 mile EJ proximity concept in relation to both a Project and an Environmental Justice Population:

Designated Geographic Area.

(a) With respect to a Project, the area within one mile of the Project; or, for a Project that meets or exceeds MEPA review thresholds at 301 CMR 11.03(8)(a)-(b) [air] or that generates 150 or more New adt [average daily trips] of diesel vehicle traffic over a duration of 1 year or more, excluding public transit trips, the area within five miles of the Project.

(b) With respect to an Environmental Justice Population, the area within one mile of the Environmental Justice Population; or, for a Project that meets or exceeds MEPA review thresholds at 301 CMR 11.03(8)(a)-(b) or that generates 150 or more New adt of diesel vehicle traffic over a duration of 1 year or more, excluding public transit trips, the area within five miles of the Environmental Justice Population.

Meaningful Public Involvement

A new section 11.05(4)(a) incorporates key components of the MEPA Public Involvement Protocol for Environmental Justice Populations (“Public Involvement Protocol”), one of two separate guidance documents which supplement these amendments and take effect on January 1, 2022. For any Project that requires an EIR because an EJ Population is located in a Designated Geographic Area around the Project area, the new regulations require the filing of advanced notice of the Project to the EJ Population and the undertaking of enhanced public involvement procedures if a single EIR or rollover EIR is being sought. The Public Involvement Protocol will govern the specific procedures to be followed.

EIR EJ Requirements

Section 11.06(7)(b) provides that “[t]he Secretary shall require an EIR for any Project that is located within a Designated Geographic Area around an Environmental Justice Population.” In the Response to Comments on the draft amendments, at 3-4, the MEPA Office “acknowledge[d] that an increase in EIR filings is likely due to the mandatory phrasing in the Climate Roadmap Act that an EIR ‘shall be required’ for certain projects near EJ populations.”

The plain language of § 11.06(7)(b) reads as an additional mandatory EIR review threshold.[1] Also, the 1-mile prong of the Designated Geographic Area definition is not expressly tied to the exceedance of a separate MEPA review threshold like the 5-mile prong is: a Project is within the 5-mile DGA if it meets or exceeds the MEPA review thresholds for air or the new threshold for diesel vehicle trips, but it is in the 1-mile DGA regardless of any review threshold. This would seemingly require an EIR for any Project located within 1 mile of an EJ Population.

However, as the MEPA Office explains it, the EIR trigger only applies to Projects that already meet or exceed another review threshold and thus are “likely to cause Damage to the Environment”:

Section 58 of the Act applies to projects that are “likely to cause Damage to the Environment,” which is a phrase used in MEPA regulations to describe the MEPA review thresholds that determine the level of MEPA review required. … In practice, this means that projects that are subject to MEPA jurisdiction and meet or exceed one or more “ENF review thresholds,” for which an ENF filing is required and any EIR was formerly required at the discretion of the EEA Secretary, will on a going forward basis be required to submit an EIR if located in the designated geographic areas around EJ populations

Response to Comments, at 4 (emphasis added).

Projects for which an EIR is required under section 11.06(7)(b) must include the EJ impacts analysis set forth in section 11.07(6)(n) in their EIR. This analysis is intended to align with the second supplemental guidance that will take effect on January 1, 2022, the MEPA Protocol for Analyzing Impacts on EJ Populations (“Protocol for Analysis of EJ Impacts”). The amendments require that an EIR contain the following five elements in addition to the usual EIR requirements:

1. Statements about the results of an assessment of any existing unfair or inequitable Environmental Burdens impacting the Environmental Justice Population;

2. If the above assessment indicates that an Environmental Justice Population is subject to an existing unfair or inequitable Environmental Burden: (i) a description of any Project impacts that would likely result in a disproportionate adverse effect on the population; and (ii) any potential Project impacts that would increase or reduce the effects of climate change on the population, taking into consideration how the Project impacts would exasperate the Environmental Burden, the comparative impact of the Project on a non-Environmental Justice Population, and any Project benefits that would reduce potential unfair or inequitable effects on the Environmental Justice Population;

3. A description of alternatives or measures to avoid or mitigate potential impacts on the Environmental Justice Population;

4. Proposed Section 61 Findings that include any actions to address any disproportionate adverse effects, or any increase in the effects of climate change, on the impacted Environmental Justice Population; and

5. Responses to public comments related to the assessment of disproportionate adverse effects or increase in the effects of climate change on the impacted Environmental Justice Population.

Rollover EIRs

“The MEPA Office estimates that more than 80% of new project filings in 2020-21 triggered ENF-only review thresholds, meaning that many future projects will be required to submit an EIR after the effective date of the regulations because they are located in the designated geographic areas around EJ populations.” Response to Comments, at 4.[2]

To address the projected influx in EIRs, the amendments introduce a new “rollover EIR” procedure intended to streamline the EJ review process where a Proponent demonstrates that a Project will not materially impact an EJ Population. This new procedure is covered in new sections 11.05(9) and 11.06(13).

For any Project for which an EIR is required under section 11.06(7)(b) (because it is located in the DGA near an EJ Population), a Proponent may file a dual Expanded ENF and a Proposed EIR, and the Secretary may allow the Proposed EIR to be reviewed as a final EIR, or require the Proponent to file responses to comments on the Proposed EIR together with Proposed Section 61 Findings and review these as a final EIR. The Secretary must find that the dual Expanded ENF and Proposed EIR:

a. completely describes the Project and its alternatives and assesses its potential environmental and public health impacts sufficiently for a Participating Agency to make its Section 61 Findings;

b. demonstrates that the Project will not materially exacerbate any existing unfair or inequitable Environmental Burden and related public health consequences impacting an Environmental Justice Population, and will not result in a disproportionate adverse effect or increased climate change effects on an Environmental Justice Population;

c. describes measures taken to provide meaningful opportunities for public involvement by Environmental Justice Populations prior to filing the dual ENF and Proposed EIR, including any changes made to the Project to address concerns raised by or on behalf of Environmental Justice Populations;

d. shows that comments received on the dual ENF and Proposed EIR do not raise substantial issues not previously considered by the Proponent; and

e. shows that no substantive issues remain to be resolved.

Supplemental Guidance

As noted, the MEPA Office issued the Public Involvement Protocol and the Protocol for Analysis of EJ Impacts to supplement and to take effect together with the amended MEPA Regulations. The Public Involvement Protocol “will instruct Proponents on how to describe ‘negative effects’ and to promote public involvement for EJ populations. Response to Comments, at 7. The Protocol For Analysis of EJ Impacts “will help to ensure that Proponents will apply a consistent methodology across projects when conducting assessments of existing ‘Environmental Burdens’ and the added impacts of the project.” Id. at 8. New project submissions will be expected to comply with the Protocols starting January 1, 2022.

The MEPA Office also announced that it is planning a second-phase rulemaking effort in 2022 to comprehensively review all sections of the MEPA regulations. It will consider whether to add additional definitions of “disproportionate adverse effect” and “unfair or inequitable burden” into MEPA regulations, which it declined to do with these amendments because of ongoing efforts in conjunction with MassDEP to define a similar EJ impacts analysis for air permitting. See Response to Comments, at 6.

***

Although not an official Red Ryder carbine action, 200-shot, range model air rifle, at least these new MEPA regulations won’t shoot your eye out.

For any questions about how these legislative changes may affect your project, contact the attorneys at Mackie Shea Durning, P.C.

 

 

[1] The MEPA Regulations “establish[ ] review thresholds that identify categories of Projects or aspects thereof, of a nature, size or location that are likely, directly or indirectly, to cause Damage to the Environment. Except when the Secretary requires fail-safe review, the review thresholds determine whether MEPA review is required.” 301 CMR 11.01(2)(b)1. “MEPA review is required when one or more review thresholds are met or exceeded and the subject matter of at least one review threshold is within MEPA jurisdiction. A review threshold that is met or exceeded specifies whether MEPA review shall consist of an ENF and a mandatory EIR or of an ENF and other MEPA review if the Secretary so requires.” 301 CMR 11.01(2)(b)2.

[2] EEA maintains an interactive mapping tool for locating EJ Populations as well as a general EJ information and resources webpage.

Mackie Shea Durning, PC Receives Accolades from Chambers USA

The Boston boutique environmental law firm of Mackie Shea Durning, PC was recognized again as one of the top environmental law firms in Massachusetts in the 2021 edition of Chambers USA: America’s Leading Lawyers for Business. In addition to the recognition for the firm as a whole, all three shareholders were individually ranked among the leading practitioners of environmental law in the state.  

The firm is known for its “respected practice, noted for its litigation prowess and representation before state and federal agencies, its effective handling of licensing disputes, (and) broad experience in matters such as solid waste management, renewable energy plants, and residential and commercial developments.”  Clients state the Mackie Shea Durning “team provides an outstanding service [and their] depth of knowledge sets them apart from others in this area of law.”  The attorneys are “highly regarded and known for the depth and breadth of their experience,” including expertise in “solid waste, Superfund and contaminated site issues.”

Thomas A. Mackie is considered “the leading solid waste attorney in Massachusetts.”  Tom also has strong experience in recycling, renewable energy, and due diligence investigations.  According to one client, “Thomas Mackie never disappoints; he’s very detailed and creative in his approach to a task.” Another reports, Tom “is very knowledgeable and fantastic to work with.”

John F. Shea is recognized for his expertise in hazardous waste cleanups, defense and cost recovery, water, and wetlands laws. He has represented the metal recycling industry since 1988. He is known for doing a “phenomenal job of translating the rules and regulations” of environmental law into practical advice.  Clients observed that “John gives sound advice and is extremely knowledgeable,” and he “is strong in the areas of environmental enforcement, compliance and permitting.”

Peter F. Durning has notable experience in handling a wide range of environmental disputes concerning wetlands and water supply permitting, including enforcement defense.  Clients observed that Peter “has a very strong understanding of environmental law and drinking water design issues.”  They also commented that Peter is “very strategic on important decisions” and provides “excellent litigation representation” in issues concerning water rights, PFAS cleanups and cost recovery actions, and a host of land use matters.

Chambers rankings are based on client interviews and opinions of colleagues and competitors assessing legal ability, professional conduct, client service, diligence, commitment and business sense.

GOVERNOR TO LIFT COVID-19 STATE OF EMERGENCY ON JUNE 15, ENDING STATE AND LOCAL PERMITTING TOLLING PERIODS

On May 17, the Baker-Polito Administration announced that Governor Baker will end the COVID-19 State of Emergency on June 15, 2021. That date will also serve as the end of the tolling period for certain state and local permitting approvals, which will re-start the clock running towards their expiration dates.

The state of emergency, first declared on March 10, 2020, has had wide-ranging effects on life in the Commonwealth. For development projects requiring state permits, the initial impact was a suspension of various deadlines relating to a broad range of approvals by state permitting agencies under the Governor’s COVID-19 Order No. 17, issued on March 26, 2020. These deadlines resumed under the Governor’s COVID-19 Order No. 42, issued on July 2, 2020, which rescinded Order No. 17 but extended the validity of certain state permits whose deadlines would have expired within the tolling period provided by Order No. 17.

Significantly, Order No. 42 also established a permit tolling period for the duration of the state of emergency for any approval issued by a state permitting agency valid as of March 10, 2020, and any deadline to record such an approval in order to establish its validity. These approvals “shall not lapse or otherwise expire during the state of emergency” and “the expiration date of the approval and the deadline to record said approval shall toll during the state of emergency.” Calculation of the new expiration and recording dates is tied to the end of the state of emergency:

Determine how many days remained as of March 10, 2020 until the approval or the deadline to record would have expired, and that same number of days will remain as of the date that the state of emergency is terminated.

For example, a Superseding Order of Conditions (“SOC”) issued by MassDEP under G.L. c. 131, § 40, on May 9, 2017, would still be valid for 60 days after the end of the state of emergency. Under MassDEP’s wetlands regulations, an SOC is valid for three years. In this example, the SOC would have expired on May 9, 2020, and thus it would have still been valid as of March 10, 2020. By operation of Order No. 42, it did not expire during the state of emergency and, since it had 60 days remaining on its term as of March 10, 2020, those 60 days will remain as of June 15, 2021, when the state of emergency ends.

In addition to the extension of state permits under the Governor’s emergency orders, the Legislature adopted an act to provide relief from local permitting deadlines during the COVID-19 state of emergency. Under Section 17(b)(iii) of Chapter 53 of the Acts of 2020, “a [local] permit in effect or existence as of March 10, 2020 … shall not lapse or otherwise expire and the expiration date of the permit … shall toll during the state of emergency.” Sections 17(b)(ii) & (iv) provide for a grace period of 45 days after the end of the state of emergency for the commencement of hearings required by statute or ordinance to be held within a certain period of time and for constructive approval or denial due to the permit granting authority’s failure to act on a permit. These deadlines will also start running again on June 15.

Per the May 17 Announcement, “the Administration will work with legislative and municipal partners during this period in order to manage an orderly transition from emergency measures adopted by executive order and special legislation during the period of the State of Emergency.”

For any questions about how this announcement may affect your permit, contact the attorneys at Mackie Shea Durning, P.C.

Posted on In Categories Client Advisory

Mackie Shea Durning PC Secures Decision from SJC to Protect Concord’s Drinking Water Withdrawals from Nagog Pond

On March 11, 2021, the Massachusetts Supreme Judicial Court (SJC) issued its decision in the litigation among Concord, Littleton, and Acton regarding the Towns’ respective rights to use Nagog Pond as a drinking water source.  

 

Mackie Shea Durning PC successfully represented Concord in the SJC and in the prior proceeding in the Land Court on this Water Law case. 

All three towns were given rights to access Nagog Pond from an act of the state legislature in 1884, but Concord is the only town that has exercised its right of withdrawal. Concord exercised its rights under the 1884 Act in 1909 and has been using Nagog Pond for drinking water ever since. Following the passage of the Water Management Act (WMA) in 1985, Concord applied for and received a Registration from the State which grandfathered its existing withdrawal volume at Nagog Pond.

The central issue in the litigation was whether Littleton and Acton could supersede Concord’s WMA Registration based on a provision of the 1884 Act that reserved a priority withdrawal right for those two towns.

The SJC concluded the 1884 Act remained viable and still gave each of the three towns the ability to use Nagog Pond as a water supply. However, the SJC also ruled the legislature’s decision to adopt the WMA and its structure of protecting and grandfathering existing withdrawals under a separate classification of registration, effectively repealed the priority provision in the 1884 Act.

Mackie Shea Durning PC specializes in environmental law and has deep experience in a range of water supply and wastewater issues, supporting cities, towns and developers to address critical drinking water supply and wastewater management goals. The team of attorneys working with the Town of Concord on this matter included Peter Durning, John Shea, Gail Magenau Hire and Peter Vetere.

 

 

Results of MassDEP’s Construction and Demolition Facility Request For Information

Last July and August, MassDEP sent a Request for Information (RFI) to all large construction and demolition (C&D) waste handling facilities regarding their compliance with the Minimum Performance Standard (MPS) guidance adopted by the Department in February 2020.  In very brief summary, the MPS guidance established a minimum 15% “Process Separation Rate” (PSR) for large C&D handling facilities (including both C&D processing and large C&D transfer stations).  In addition, a facility must remove waste banned materials “to the greatest extent possible” meaning that 15% removal is the floor and “the greatest extent possible” is the ceiling.  The MPS guidance is designed to provide a clear standard for C&D facilities to comply with the Department’s waste bans on disposal or transfer for disposal of the four C&D waste ban materials: wood; asphalt pavement, brick, and concrete (ABC); metal; and clean gypsum wallboard.  These materials have been banned since 2006[1] under the Department’s Solid Waste Management Facility Regulations at 310 CMR 19.017.

The Department’s RFI was intended, in part, to generate information on each individual facility’s compliance with the MPS guidance, and, for non-compliant facilities, their plans to come into compliance.  On January 29, Michael Elliott, MassDEP’s Asbestos and C&D Program Coordinator, presented the following slide compiling the C&D facilities’ responses for early CY2020 operations:

The results reveal a low level of compliance across the board.  Of the eighteen C&D processors who responded, only five met both MPS guidance performance criteria.  Two processing facilities met only the 15% PSR; three removed all four types of waste banned materials but did not meet the 15% minimum PSR; and eight other processing facilities were both below the 15% PSR and were not removing all four types of waste banned materials.  Of the eleven large C&D transfer stations who responded, only one met both performance criteria; one met the 15% PSR; and two were removing all four waste banned materials, but at less than the 15% PSR.

However, based upon Mr. Elliott’s presentation, it appears that many facilities are working towards compliance through the acquisition of new equipment and planned changes in operational practices.  C&D processing facilities will need to demonstrate that they are meeting both the 15% PSR and that they are removing all four categories of C&D waste ban materials “to the greatest extent possible.”  Like “Best Available Control Technology” or “BACT” requirements for sources of air emissions, the MPS guidance will eventually have an upward ratcheting effect on processing facility separation rates.  Once one C&D processing facility shows that separation at a rate greater than 15% can be achieved, others will need to follow suit or demonstrate why such a separation rate is not “possible.”  Large C&D transfer stations will likely comply by limiting acceptance to only C&D residuals from a compliant processing facility or by transferring all C&D to a compliant processing facility.  This too should drive recovery of waste banned materials from C&D.

It is important to note that the MPS guidance is really just another step in the evolution of the Department’s waste ban policy.  The concept of removal of waste banned items “to the greatest extent possible” is not new.  Under existing regulations, facilities are required to adopt and comply with Waste Ban Compliance Plans in accordance with 310 CMR 19.017(6).  As long as a facility remains in compliance with its approved plan, it is in compliance with the regulations.  Since at least 2014, the Department’s Guidance for Solid Waste Handling and Disposal Facilities on Compliance with MassDEP’s Waste Bans has required that a facility’s Waste Ban Compliance Plan “must demonstrate how the facility will, to the greatest extent possible, separate out from waste loads banned materials for subsequent reuse or recycling.”

What is new in the MPS guidance is the bright line minimum of the 15% PSR performance criterion.  Under the previous Guidance, the Department took the position that “while MassDEP may take enforcement for any amount of waste ban materials that MassDEP observes in a shipment destined for disposal, a solid waste management facility is only required to take action in accordance with Section VIII of its approved Waste Ban Plan for unacceptable loads.”  A facility that identified such a load could remain in compliance with the waste ban regulation simply by following Section VIII of its Waste Ban Compliance Plan, which required the facility operator to communicate with the driver and the generator of the failed load and manage the failed load according to a hierarchy ranging from rejection of the load to disposal of that portion of the load that cannot be separated and reloaded, rejected, or recycled.  But nowhere was there a clear requirement to achieve a 15% minimum PSR.

For any questions about how these developments may affect your facility, contact the attorneys at Mackie Shea Durning, P.C.

[1] The ban on clean gypsum wallboard came into effect on July 1, 2011.

Major Developments in Environmental Justice in Massachusetts

The General Court, the Governor, and the Executive Office of Energy and Environmental Affairs (EOEEA) are proposing, and will likely adopt, significant changes to Massachusetts’ environmental justice (EJ) policy.

Most recently, on February 10, 2021, the EOEEA proposed a MEPA Interim Protocol for Environmental Justice Outreach that enhances and expands outreach to EJ populations during environmental review of new projects. On February 7, Governor Baker returned S. 9, a monumental climate bill titled “An Act creating a next-generation roadmap for Massachusetts climate policy,” to the General Court, with a letter suggesting amendments to strengthen the climate bill, including its EJ provisions. This was in response to the General Court’s passage of the bill on January 28 with a veto-proof margin after Governor Baker had “pocket vetoed” the same bill for various reasons at the end of the last legislative session. Sections 55 through 60 of the climate bill amend the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61-62H (MEPA), to incorporate new provisions to promote environmental justice in the Commonwealth.[1]

Governor Baker’s changes would include “climate change” within the definition of the “environmental burdens” that would need to be studied in the MEPA process. He also suggested broadening the applicability of the new EJ requirements to all projects subject to MEPA review, not simply those that are “not insignificant.”  This change would not only require compliance with the new EJ policies in filings of Environmental Impact Reports, but in all MEPA filings, including Environmental Notification Forms. Finally, Governor Baker proposes to require the MassDEP to incorporate review of cumulative impact analysis in its permitting processes, as follows:

The department of environmental protection shall evaluate and seek public comment on the incorporation of cumulative impact analysis in the assessment and identification of certain categories of permits and approvals. Not later than 18 months after the effective date of this act, the department of environmental protection shall propose regulations to include cumulative impact analysis for defined categories of air quality permits identified through the evaluation and public comment process.

Governor Baker did not suggest changes to any of the other core EJ provisions of the bill. In summary, if passed in its current form, the new bill will significantly alter the environmental review process for many projects located in or near an EJ population and will likely require significant new project mitigation to offset historical environmental burdens suffered by such populations.[2] At the core of the bill is the definition of “environmental justice principles,” which are:

principles that support protection from environmental pollution and the ability to live in and enjoy a clean and healthy environment, regardless of race, color, income, class, handicap, gender identity, sexual orientation, national origin, ethnicity or ancestry, religious belief or English language proficiency, which includes: (i) the meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies, including climate change policies; and (ii) the equitable distribution of energy and environmental benefits and environmental burdens.

The new bill will require an environmental impact report for any project that is likely to cause damage to the environment and that is located within a distance of one mile (or for projects that will impact air quality, five miles) of an EJ population. An EJ population means any neighborhood where: (i) the annual median household income is less than 65 per cent of the statewide annual median household income ($81,215 in 2019); (ii) minorities comprise 40 per cent or more of the population; (iii) 25 per cent or more of households lack English language proficiency; or (iv) minorities comprise 25 per cent or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150 per cent of the statewide annual median household income. There is also provision for ten residents of a portion of a neighborhood to petition the Secretary for EJ population status of such portion.

Such environmental impact reports must assess “any existing unfair or inequitable environmental burden and related public health consequences impacting the environmental justice population from any prior or current private, industrial, commercial, state, or municipal operation or project that has damaged the environment” based on guidelines established by the Secretary.

If the assessment indicates an environmental justice population is subject to an existing unfair or inequitable environmental burden or related health consequence the report shall identify any: (i) environmental and public health impact from the proposed project that would likely result in a disproportionate adverse effect on such population; and (ii) potential impact or consequence from the proposed project that would increase or reduce the effects of climate change on the environmental justice population.

The new legislation would also eliminate any current exclusions from the requirement to prepare an environmental impact report for projects affecting an EJ population: “No agency shall exempt from an environmental impact report any project that is located in a neighborhood that has an environmental justice population and is reasonably likely to cause damage to the environment, as defined in section 61.” The only exception would be for emergency actions.

The bill would also add significantly to the enhanced public participation requirements contained in the current EOEEA Environmental Justice Policy (the 2017 EJ Policy) by requiring the Secretary of the EOEEA to improve access for public participation by the EJ population during the MEPA review process. Enhanced public participation requires appropriate measures such as: (i) making public notices, environmental notification forms, environmental impact reports, and other key documents related to the secretary’s review and decisions of a project review available in English and any other language spoken by a significant number of the affected environmental justice population; (ii) providing translation services at public meetings for a significant portion of an affected environmental justice population that lacks English proficiency in the project’s designated geographic area; (iii) requiring public meetings be held in accessible locations that are near public transportation; (iv) providing appropriate information about the project review procedure for the proposed project; and (v) where feasible, establishing a local repository for project review documents, notices and decisions.

The new legislation would impose on the Secretary an additional standard for approval of an environmental impact report for a project, requiring the Secretary to “consider the environmental justice principles … in making any policy or determination, or taking any action relating to a project review … to reduce the potential for unfair or inequitable effects upon an environmental justice population.” Moreover, the law would require the Secretary to impose similar requirements on all EOEEA agencies: “To further the environmental justice principles the secretary shall direct its agencies, including the departments, divisions, boards and offices under the secretary’s control and authority, to consider the environmental justice principles in making any policy, determination or taking any other action related to a project review, or in undertaking any project … that is likely to affect environmental justice populations.”

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Environmental justice is rooted in Article 97 of the Constitution of the Commonwealth of Massachusetts, which guarantees that:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The EOEEA laid the groundwork for this new legislation in 2002 when it formulated the agency-wide Environmental Justice Policy that made environmental justice “an integral consideration” to all EOEEA programs, “including but not limited to, the grant of financial resources, the promulgation, implementation and enforcement of laws, regulations, and policies, and the provision of access to both active and passive open space.” In 2014, Governor Patrick issued Executive Order No. 552, establishing a Director of Environmental Justice within the EOEEA and creating the Governor’s Environmental Justice Advisory Council, which the new legislation carries forward.

This new bill would mark the first time these EJ provisions have been implemented by legislative rather than executive action, a significant development that will ensure consistent implementation going forward regardless of what administration controls the executive branch. And, by amending the MEPA process, the new legislation ensures that EJ principles will be considered for all state agency actions, not just actions within the EOEEA.

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Meanwhile, assuming that it becomes effective, the EOEEA’s proposed Interim Protocol will advance several of the climate bill’s EJ goals. (The EOEEA appears to be on a much shorter timeline for adopting the proposed Protocol than the Governor’s 180-day timeline for adopting amendments to the MEPA regulations incorporating the EJ changes.)

Under the Protocol, all new projects filing with the MEPA Office will be subject to new pre-filing requirements, starting with  identifying the location of the project relative to EJ populations on a mapping tool. If any portion of the project site is located within an EJ population (as defined in the 2017 EJ Policy), the Proponent is required to consult with the MEPA Office at least 10 days prior to filing to determine an appropriate EJ outreach strategy. According to the Protocol:

[i]n most cases, such strategy shall include, at a minimum, conducting outreach to local EJ groups and, if “English Isolation” (limited English proficiency) is indicated on the mapping tool as an identifying feature of the EJ population, offering, to the extent practicable, translation and interpretation services in languages spoken by a significant portion of the population. These language service requirements shall apply to notices, documents and community meetings that pertain to the proposed project.

The MEPA Office will consider the potential need for enhanced outreach to EJ neighborhoods during the course of MEPA review for any project that must file a mandatory environmental impact report. The Interim Protocol supplements the 2017 EJ Policy, which remains in effect for all projects to which its requirements apply.

With the climate bill back in the General Court to consider Governor Baker’s suggested amendments, and the EOEEA circulating the Interim Protocol for comment on a short time line, these or other major shifts in the Commonwealth’s approach to environmental justice will soon become a reality.

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For any questions about how these legislative changes may affect your project, contact the attorneys at Mackie Shea Durning, P.C.

 

 

[1] A redline copy of the current MEPA statute showing changes proposed in S.9can be accessed here. 

[2] A table showing the principal differences between the 2017 Environmental Justice Policy of the Executive Office of Energy and Environmental Affairs and the EJ provision in S.9 l can be accessed here.

 

MASSDEP SETS MCL FOR PFAS IN DRINKING WATER

On September 24, 2020, the Baker-Polito Administration issued a press release to announce that it finalized the regulations to establish a Maximum Contaminant Level (MCL) for per- and polyflouroalkyl substances (PFAS) in drinking water.
 
Simultaneously, MassDEP issued a notice to all public water suppliers (PWS) indicating the final regulations will be published and go into effect on October 2, 2020.
 
The final version of the MCL, which will be part of the revised drinking water regulations at 310 CMR 22.00, mirrors the draft regulations that were disseminated for public comment in December 2019 and establishes a Total PFAS MCL of 20 parts per trillion (ppt) for the sum of six PFAS compounds: PFOS, PFOA, PFHxS, PFNA, PFHpA, and PFDA. The regulations provide a new nickname for the group, the “PFAS6.”
 
The regulatory limit matches the revised Office of Research and Standards Guideline from January 24, 2020, but the new regulations also recognize that the scientific community’s understanding of the toxicological impacts from this broad class of synthetic compounds is still being developed. Section 310 CMR 22.07G(3)(e) of the final regulations directs MassDEP to “perform a review of relevant developments in the science, assessment and regulation of PFAS in drinking water for the purpose of evaluating whether to amend 310 CMR 22.07G(3) in light of any advancements in analytical or treatment technology, toxicology and/or any other relevant information” once every three years. Through this process, the PFAS concentration level could be changed and additional compounds could be added to the list of regulated contaminants in the future.
 
While the December 2019 draft MCL regulations anticipated the largest PWS serving more than 50,000 customers would begin quarterly monitoring by April 1, 2020, the COVID-19 pandemic hampered the agency’s ability to complete the regulatory review process. As a result, the final regulatory package was delayed and the Department set January 1, 2021 as the new monitoring start date for the largest PWS. The final regulations stagger the monitoring start date for PWS serving between 10,000 and 50,000 customers to April 1, 2021, and systems with less than 10,000 customers start monitoring on October 1, 2021.
 
In addition to unveiling the anticipated release of the final MCL regulations, the administration’s press release also announced the recipients of MassDEP’s PFAS Treatment Grants to support the design of treatment systems and reimburse costs and expenses for communities impacted by PFAS in drinking water. Ten water supply systems received grants of $200,000 from the PFAS Treatment Grant program.
 
In combination with the revisions that MassDEP made to the Massachusetts Contingency Plan in December 2019, which established reportable concentrations and cleanup standards for PFAS in soil and groundwater, this new MCL for PFAS in drinking water is another important step toward achieving a comprehensive regulatory framework for detecting and remediating PFAS in the Commonwealth. 
 
 
For more information:
 
John Shea’s newsletter article PFAS: From “Emerging Contaminants” to “Forever Chemicals” provides a survey of the regulatory history for PFAS in Massachusetts up through the draft MCL.
 
Peter Durning is a co-chair and moderator of an upcoming Environmental Business Council of New England (EBC) webinar with the leadership of the MassDEP Bureau of Water Resources on Wednesday, September 30, 2020. The speakers, including Assistant Commissioner Kathleen Baskin, and the Director of the Drinking Water Program, Yvette DePeiza, will certainly address this significant development in the drinking water regulations. Follow this link for more information and registration. 

RETURN TO THE PFAS ZONE

Just as Jordon Peele is bringing back the haunts and chills of the off-kilter world of the Twilight Zone for Season 2, Massachusetts finds itself being unwittingly drawn deeper into another PFAS Zone rerun.

Without going through a formal public rule making process, MassDEP is once again digging into its regulatory grab-bag to impose unprecedented requirements on industrial actors and permittees in the Commonwealth. In recent draft surface water discharge permits MassDEP issued to Shire Human Genetic Therapies and Genzyme Corporation, MassDEP unilaterally imposed new PFAS monitoring obligations. Though the draft permits acknowledge that “Massachusetts Surface Water Quality Standards do not include numeric criteria for PFAS,” the Department cites 314 CMR 4.05(5)(e) for the “narrative” criteria that “[a]ll surface waters shall be free from pollutants in concentrations or combinations that are toxic to humans, aquatic life or wildlife.”

While the Department’s push to use its regulatory authority to address the prevalence of PFAS in the environment is understandable, using the Office of Research Standards’ Guidelines as a means to backdoor stringent effluent standards on NPDES permittees imposes burdens on individual industrial facilities without any benefit of public notice of a changed regulatory landscape. While Massachusetts Administrative Procedures Act, M.G.L. c. 30A, does not impose a formal requirement that MassDEP perform a full cost-benefit analysis before promulgating regulation, M.G.L. c. 30A, § 5 directs agencies to state the fiscal impact of the proposed regulation on the public and private section for the first and second year as well as the first five years. Rolling out new regulatory initiatives in permit renewals side-steps this requirement to disclose the direct expense of imposing stringent PFAS monitoring criteria on industrial facilities. It also limits a permittee’s time and ability to plan for capital allocations that might be necessary to address or abate otherwise permissible discharges.

Given the prevalence of PFAS and its pre-cursors in a great range of industrial applications, the likelihood that any specific discharge may exhibit some concentration of PFAS is extremely high. That the discharge levels can be mitigated or eliminated either through changed industrial processes or at the discharge point is unknown. Advancing regulatory programs in a public and orderly fashion, not only allows industry to understand what risks and costs they may face, it also spurs innovation in remedial technologies. In contrast, MassDEP’s ad hoc approach is going to cast permittees into a thicket of monitoring requirements and eventually noncompliance for exceedances that do not have proven cost-effective treatment alternatives at this scale. While the regulatory limits for surface water discharges have not been established, the only allowance the draft permits provide for terminating the monitoring requirement is four (4) consecutive quarterly samples being measured at the nano-gram per liter sensitivity “reported as non-detected for all six PFAS compounds.” That is an infinitesimally low bar that few facilities will be able to meet. The one immediate reprieve is the lack of a public EPA multi-lab validated method for testing wastewater.

During the Trump administration, environmental concerns have been given short-shrift at the federal level and inter-governmental cooperation is at a low ebb. Earlier this summer, Massachusetts submitted a public comment letter to EPA on the proposed 2020 Multi-Sector General Permit requesting that EPA add a requirement for annual PFAS monitoring for 13 industrial sectors regulated by the MSGP, which will likely be rebuffed as the two regulatory agencies struggle to find common ground on the administration of CWA NPDES permits. While MassDEP is probably correct to hedge its bet that EPA is not going to salute its proposal to include PFAS monitoring in the MSGP, the Department should not attempt to achieve the same aim by ambushing permittees seeking routine renewals.

The last time we wrote about MassDEP leading drinking water suppliers into the PFAS Zone of demanding remedial action despite a lack of formal regulatory standards was May 2019. In the intervening period, MassDEP slow-walked its MCP and MCL rulemaking process while publically stating that its other regulatory programs were going to have to wait for the Department to assess and determine the specific regulatory thresholds that were appropriate for those activities. Rather than foster the public dialogue that comes with proper administrative procedures and deliberate rule-making, MassDEP is imposing new permit conditions by fiat.

Under the Massachusetts Clean Water Act, M.G.L. c. 21, §§ 26-53, MassDEP has broad discretion to implement water quality regulations. As the SJC noted in Friends & Fishers of Edgartown Great Pond, Inc. v. Dep’t of Envtl. Prot., 446 Mass. 830, 838 (2006), “The statutory purpose of the Act, expressed through its text, makes it clear that the department has the discretion to create regulations that will best preserve and also restore the quality of our waters.” If MassDEP has science-based regulations it wants to promulgate regarding PFAS in surface water bodies, it should harness its internal expertise and publish its regulatory framework with proper technical support and weather the scrutiny of a proper administrative procedure. The regulation will likely be upheld under the Department’s broad discretion, but the rulemaking process will promote better dialogue among MassDEP and the regulated community while helping to foster strategies for achieving compliance rather than fear of enforcement.

Though we will have to wait on a formal opportunity to issue public comments on any proposed Surface Water Quality Standards, interested parties may comment on the two draft 401 certifications and State permits issued to Shire Human Genetic Therapies and Genzyme Corporation. The deadline is Thursday, August 13, 2020.

Written comments may to be submitted by email to npdes@mass.gov, or by regular mail to:

Xiaodan Ruan
MassDEP Surface Water Discharge Program
Bureau of Water Resources
1 Winter Street – 5th Floor
Boston, MA 02108.

Mention Shire Human Genetic Therapies or Genzyme Corporation in the subject line of your email or the reference line of your letter.

If you want to discuss the implications of the development on your permits or collaborate on a comment letter, contact us at Mackie Shea Durning, PC.


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