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.

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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.”

***

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.

***

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.

***

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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CLIENT ADVISORY: GOVERNOR BAKER ISSUES UPDATED ORDER ON STATE PERMITTING DEADLINES

On July 1, 2020, Governor Charles D. Baker issued a new Executive Order addressing certain state permitting deadlines in light of improved conditions in the Commonwealth during the COVID-19 state of emergency.

The new order, COVID-19 Order No. 42, rescinds the prior state permitting order, Order No. 17, which affected a broad group of state permitting approvals. Read our prior Client Advisory for a description of the affected approvals.

Order No. 42 sets new deadlines for constructive approvals, hearings, decisions, and appeal rights that would have been effective between March 10 and July 1 but were suspended under Order No. 17, and sets a date certain for these deadlines that become effective after July 1 and going forward:

  • Constructive approvals that would have issued during the affected period will now issue on August 17, 2020, and constructive approvals that will issue after July 1 will now issue according to their usual statutory or regulatory deadline or on August 17, whichever is later.
  • Hearings that the permitting agency would have required to commence during the affected period will now commence before August 10, and hearings that would commence after July 1 will now commence according to their usual statutory or regulatory deadline or by August 10, whichever is later.
  • Decisions that the permitting agency would have been required to issue during the affected period will now be issued on or before August 10, and decisions that must issue after July 1 will now be issued according to their usual statutory or regulatory deadline or August 10, whichever is later.
  • Appeal rights that would have expired during the affected period will now expire on August 10, and any appeal rights that would expire after July 1 will now expire according to their usual statutory or regulatory deadline or by August 10, whichever is later.

Order No. 42 also pauses or “tolls” permit approvals which were valid as of March 10 and provides that these approvals will not lapse until after the state of emergency is terminated, when the number of days remaining as of March 10 until the original deadline will be tacked on to end and will establish the new deadline.

The Order, given at 5:30 p.m. on July 1, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

EPA AND ACOE ISSUE NEW “WATERS OF THE UNITED STATES” RULE FOR CLEAN WATER ACT JURISDICTION

In April 2020, two days before the U.S. Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (ACOE), published the Navigable Waters Protection Rule redefining the scope of waters subject to federal regulation under the Clean Water Act (Act or CWA).

The Act, which prohibits the discharge of any pollutant into “navigable waters” without a permit from the EPA under the National Pollutant Discharge Elimination System (NPDES) and the discharge of dredge or fill material into “navigable waters” without a permit from the ACOE under the Act’s Section 404 permit program, defines “navigable waters” as “the waters of the United States, including the territorial seas.” Although the Supreme Court has consistently held that the CWA’s jurisdiction extends beyond waters that are actually navigable, a clear definition of “waters of the United States” (WOTUS) has eluded lower courts and federal regulators since the Supreme Court decided Rapanos v. United States in 2006. In Rapanos, a plurality opinion by Justice Antonin Scalia interpreted WOTUS to cover relatively permanent or continuously flowing bodies of water connected to traditional navigable waters, as well as adjacent wetlands with a continuous surface water connection to these waters. Although concurring in the ultimate decision, Justice Anthony Kennedy wrote a separate opinion with a different interpretation of WOTUS, covering any wetlands that have a “significant nexus” with traditionally navigable waters. The 4-1-4 decision did not establish a clear precedent for the WOTUS definition.

In June 2015, the Obama Administration published the Clean Water Rule to clarify the WOTUS definition after questions arose over the government’s authority when confusion around the WOTUS definition stalled CWA enforcement actions. The Clean Water Rule looked to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and adopted Justice Kennedy’s “significant nexus” standard to implement this objective. The rule thus covered any waters that, either alone or in combination with similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of traditional navigable waters. It established six categories of waters that were jurisdictional by rule; specified waters that were excluded from CWA jurisdiction; and identified two categories of waters (similarly-situated regional waters and floodplain waters) that could be subjected to a case-specific significant nexus jurisdiction analysis.

The new Navigable Waters Protection Rule replaces the Clean Water Rule and, in doing so, shifts the emphasis of the WOTUS definition more in line with Justice Scalia’s plurality opinion in Rapanos. Under the new rule, jurisdictional waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The new rule establishes four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface water flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters. All other waters or features are excluded from CWA jurisdiction.

This new rule will have the effect of further muddying the waters of CWA jurisdiction as the regulatory pendulum swings back once again, risking further confusion in an area where consistency and predictability are key. As the new rule reduces the Act’s reach over the nation’s waters, it is expected that it will also reduce the number of permits required under the NPDES and Section 404 permit programs. There are five lawsuits currently in federal court which are challenging the Navigable Waters Protection Rule, including a lawsuit in Massachusetts federal court.

We will continue to monitor judicial and administrative developments under the CWA as courts, the EPA, and the ACOE apply this new rule. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

By Peter M. Vetere

U.S. SUPREME COURT ISSUES NEW GUIDANCE ON CLEAN WATER ACT PERMITTING

In April, the United States Supreme Court issued a decision that could drastically expand the scope of activities requiring a permit under the federal Clean Water Act (CWA or Act). The case, County of Maui v. Hawaii Wildlife Fund, involved a wastewater reclamation facility in Hawaii that pumped treated waste water into groundwater injection wells, from which the effluent would enter groundwater and flow to the Pacific Ocean.

The Court held that, even though the effluent traveled through groundwater (a non-point source) before entering the ocean, this activity required a CWA permit, because it was “the functional equivalent of a direct discharge from the point source into navigable waters.” In doing so, the Court introduced a new test for determining whether indirect discharges, i.e., when point-source discharges of water pollution enters a non-point source (such as groundwater) before traveling to a water body covered by the CWA, required CWA permits.

The holding is particularly relevant to wastewater treatment facilities who pump treated effluent into groundwater wells, since that is the particular fact pattern at issue; however, it is also relevant to any point source discharger from whom pollutants could travel through groundwater or another non-point source into waters of the United States.

 

CWA Permitting and Application

The CWA prohibits the “discharge of any pollutant by any person” into the waters of the United States without that person obtaining a permit from the United States Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES). The Act defines “pollutant” broadly to include, among other things, any solid waste, sewage, and industrial, municipal, and agricultural waste discharged into water. A “discharge of a pollutant” is any addition of any pollutant to navigable waters from any point source. A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, or well, from which pollutants are or may be discharged.

Less clear is whether, and to what extent, a NPDES permit is required for discharges of pollutants to non-point sources, such as groundwater. Regulation of groundwater has traditionally been left to the states and not the federal government under the Act. Practically speaking, non-point source pollution is rarely traceable to any single discrete source and is, therefore, difficult to regulate through individual permits.

Not too long before the Court’s decision, in November 2019, the federal court in Massachusetts acknowledged the ambiguity inherent in the CWA’s application to discharges of pollutants into groundwater. In Conservation Law Foundation, Inc. v. Longwood Venues & Destinations, Inc., the District of Massachusetts deferred to EPA’s April 2019 interpretative statement on the issue and held that “discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrological connection to navigable waters.” Thus, the Supreme Court’s decision in County of Maui nullified what was the (not at all longstanding) prevailing law on this issue in Massachusetts.

The Court’s Decision and the New “Functionally Equivalent” Test

In County of Maui, a majority of the Supreme Court (in a 6-3 opinion written by Associate Justice Stephen G. Breyer) resolved the ambiguity by applying the CWA to certain discharges of pollutants to groundwater. Under the new test, the addition of a pollutant from any point source requires a NPDES permit when (i) a point source directly discharges pollutants into navigable waters, or (ii) the addition of the pollutants is “the functional equivalent of a direct discharge from the point source into navigable waters.”

Unfortunately, by resolving one ambiguity, the Court may have created more confusion instead of clarifying the law. The majority essentially staked a middle position between two arguments. The petitioner, the County of Maui’s wastewater treatment facility, argued for a bright-line “means-of-delivery” test where only direct discharges from a point source to a covered water required a permit, focusing on the manner in which the pollutant is conveyed to the covered water. The respondents, several environmental groups who filed a CWA citizen suit against the water treatment facility, argued for application of the Ninth Circuit’s “fairly traceable” test, which would have required a permit whenever pollutants are fairly traceable from the point source to a navigable water. The U.S. Solicitor General submitted an amicus brief in support of the petitioner and arguing for the application of the EPA’s April 2019 interpretative statement. The Court declined to grant deference to the EPA’s interpretation, because no party had requested it and because a total exclusion of all discharges through groundwater “would open a loophole allowing easy evasion of the [Act’s] basic purposes.”

In the end, the Court settled on the “functional equivalent” test and identified several factors which may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters:

  • transit time;
  • distance traveled;
  • the nature of the material through which the pollutant travels;
  • the extent to which the pollutant is diluted or chemically changed as it travels;
  • the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
  • the manner by or area in which the pollutant enters the navigable waters; and
  • the degree to which the pollution has maintained its specific identity at the point it enters the navigable water.

The first two factors, time and distance, will be the most important factors in most cases.

The problem with this new test is that it introduces a number of new ambiguities to replace the original ambiguity over whether discharges to groundwater required a CWA permit. The Court acknowledged these shortcomings: the list of factors is not exhaustive (“courts can provide guidance through decisions in individual cases”); the two factors which the Court said are most important will “not necessarily [be important in] every case;” and even when time and distance are important, there is only a sliding scale of the acceptable range (a permit is required somewhere between “[w]here a pipe ends a few feet from navigable waters” and “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later”).

During a status conference in federal district court following the decision, the Maui wastewater facility declared its intent to proceed to discovery and prepare its case for trial in light of the Supreme Court’s ruling. Both parties will have an opportunity to submit additional briefs on discovery issues, which the district court will hear in a further status conference at the end of June.

In combination with the EPA’s newly-promulgated Navigable Waters Protection Rule revising the definition of “waters of the United States,” which takes effect on June 22, 2020, the Supreme Court’s decision marks a major shift in CWA permitting.

We will continue to monitor judicial and administrative developments under the CWA as courts and the EPA apply this new “functional equivalent” test. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

 

By Peter M. Vetere