Category: Client Advisory

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The Order, given at 5:30 p.m. on July 1, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.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

CLIENT ADVISORY: EXECUTIVE ORDER EXTENDS STATE PERMITS DURING COVID-19 EMERGENCY

Governor Charles D. Baker has issued an Executive Order suspending certain state permitting deadlines and extending the validity of other state permits due to the continued state of emergency that exists in the Commonwealth because of the coronavirus outbreak.

The Order, COVID-19 Order No. 17, affects a broadly-defined group of approvals (except enforcement orders) concerning the use and development of real property; the allocation or use of water or other natural resources; or the discharge, emission, abatement, or management of waste or pollutants, that are issued by state permitting authorities under the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. The Order specifically includes constructive approvals when a state permitting authority fails to act within a specified period of time; requirements that a hearing commence within a specified period of time; and requirements that a state permitting authority issue a decision or request a superseding order of determination within a specified period of time. The Order pauses the relevant time periods for the duration of the COVID-19 state of emergency and for 45 days after its termination, after which the time periods will begin to run again.

Additionally, the Order extends the deadline for filing an appeal of a decision by a state permitting authority if the time for filing the appeal would expire during the state of emergency. The deadline to file these appeals is now 45 days after the termination of the state of emergency. The Order also extends any permits valid as of March 10, 2020, that would have expired or lapsed during the state of emergency; the expiration date of these permits is tolled during the state of emergency (but not for an additional 45 day period).

Finally, the Order suspends the requirement for the Department of Environmental Protection to hold a public hearing for adopting its Intended Use Plan (IUP) for 2020. The DEP may adopt the IUP without a public hearing by publishing a draft IUP and accepting and considering public comments on it.

Previously, Governor Baker issued an executive order requiring all businesses and organizations not designated as “COVID-19 Essential Services” to close their physical workplaces and facilities to employees and the public. The Governor has urged non-essential state employees to remain home and work remotely and has closed many state administrative offices. This new Order explains that “such closures, while essential for public health, are expected to affect the ability of the Commonwealth and its agencies to timely process requests for licenses, permits, approvals, and certificates of registration” and that “the current public health crisis is preventing people and businesses from complying with the deadlines and conditions of permits, licenses, and other approvals issued or granted by the Commonwealth and its agencies.”

The Order, given at 7:05 PM on March 26, 2020, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

The full text of the Order is available at https://www.mass.gov/doc/march-26-2020-permit-extension-order/download. If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

CLIENT ADVISORY: COVID-19 Impacts on Solid Waste

FEDERAL UPDATE
The Federal Motor Carrier Safety Administration consolidates all updates regarding its Expanded Emergency Declaration at the following website: https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19.
 
The Expanded Emergency Declaration, No. 2020-02, which was issued pursuant to 409 C.F.R. § 390.23, covers all 50 states and the District Of Columbia.
 
The Expanded Emergency Declaration “provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for…(2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 
The FAQ issued connection with the Expanded Emergency Declaration provides the following clarification:
 
 
Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
 
 
MASSACHUSETTS UPDATE
On March 20, 2020, Governor Baker issued a Declaration of Emergency Notice, pursuant to 49 C.F.R. § 390.23 declaring “that an emergency exists pertaining to an essential service, the intrastate pickup of residential and commercial refuse from residences and businesses and the delivery of such refuse to recycling and landfill sites within the Commonwealth of Massachusetts.
 
 
 
From concerns over infectious trash, to an expected shortage of employees, the solid waste industry and regulators are busy developing contingency plans to address possible impacts of COVID-19.
 
 
The industry has historically weathered flu seasons and earlier outbreaks.  Thus, in its March 6 Guidance on Coronavirus (COVID-19) the Solid Waste Association of North America has not recommended any special precautions to protect waste workers from COVID-19.  Nevertheless, the Association recommends that employers and managers review the US Centers for Disease Control and Prevention’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

Similarly, the National Waste and Recycling Association (NWRA)’s March 9th FAQ on 2019 Novel Coronavirus states that “[b]ased on discussions with the CDC, waste from households can be managed as they typically would be for the flu. No special precautions are necessary.” For worker safety the NWRA recommends the typical “general precautionary measures” and references OSHA’s requirement that workers use appropriate engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposure.
 
More recently, OSHA has issued an Alert to Prevent Worker Exposure to Coronavirus (COVID-19) that contains the same precautions we have heard repeatedly on the news and from public officials and a Guidance on Preparing Workplaces for COVID-19 which does not categorize workers in the solid waste industry as either medium or high risk of exposure.
 
Beyond concerns over the trash itself and worker safety, the industry is concerned about the effect of emergency declarations and strict regulations on its ability to operate.  In order to address the foregoing concerns, on March 16, the NWRA sent a request to all states for regulatory flexibility in handling of municipal solid waste, yard waste and recycling. Separately, the NWRA has requested a “Critical Industry” designation from Governor Baker that would exempt the industry from economy wide constraints that the government may promulgate under the Governor’s Declaration of a State of Emergency.
 
Possible employee shortages are the main concern.  A waste handling facility without employees cannot run itself, nor do garbage trucks drive and pick up waste without drivers.  The industry and regulators are anticipating possible facility outages or difficulties moving waste.  In addition to typical curb side collection of commercial and residential waste, the industry in New England relies very heavily upon long-haul trucking and rail of waste to out-of-state landfills such as those in New York, Ohio and Virginia.  Since there is not enough disposal capacity within New England for all of our waste, if transport to these out-of-state landfills is curtailed, waste will back up locally.  The same holds true for facilities within Massachusetts. For example, about 66% (3.2 M tons/yr.) of our municipal solid waste goes to 7 energy from waste facilities.  If one of these facilities cannot operate due to employee absences, the waste will need to be redirected.  Currently there is no flex built into the system to accommodate that additional waste. In order to avoid the specter of waste piling up at the curbside, industry and government officials are discussing various temporary local relief valves, such as lifting facility tonnage limits, to absorb whatever backups may occur
 
Let’s hope that none of these eventualities come to pass and that our social distancing will flatten the curve enough to keep people healthy and get the economy back up and running soon.  Meanwhile, bag your waste and wash your hands!
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Waste Wars: How the 2030 Solid Waste Master Plan Is Shaping the Future of Trash in MA

 

“All you have to do is point,” claims 1-800-Got-Junk. Well, not exactly, at least not in Massachusetts.  Here, we study our trash, sort it, treasure it, and, more recently, debate it.  And that is not a bad thing, at least for some of us. If you love trash as much as we do (or even if you hate it), then by all means, read the more than 85 comments that have been filed on MassDEP’s draft 2030 Solid Waste Master Plan.  

Slogging through the 117 pages of comments can be tedious, but to us they are informative, entertaining, and, most importantly, illuminate the huge divide between industry, environmentalists and public officials on this otherwise mundane topic.  Luckily, you can read this absolutely unbiased and neutral summary.  Even better, you can call any one of us here at Mackie Shea Durning, PC to get the inside scoop on the state of waste in the Commonwealth.

The governing statute, M.G.L. c. 16, § 21, passed as part of the Solid Waste Act of 1987, St. 1987, c. 584,  provides, in part, that: “[t]he comprehensive statewide master plan referred to herein shall describe, to the maximum practicable extent, a short and long-range program for disposal of solid waste throughout the commonwealth, the solid waste facilities which the department determines to be necessary or convenient to the disposal of such waste in a manner which protects the public health, safety and environment and is financially sound, and the funding for the development of such facilities which the department finds to be reasonable necessary.” In brief, we believe that the draft 2030 Master Plan meets this legal threshold, even if it relies upon out-of-state disposal facilities as “necessary or convenient to the disposal of such waste  . . .” Nor do any of the commenters claim that the MassDEP has failed to fulfill its statutory mandate.  However, some commenters assert that the Department is obligated to go further in order to satisfy the greenhouse gas reduction requirements of the Global Warming Solutions Act.  For example, industry commenters decry the fact that about 21% of our waste is exported out-of-state, an expensive proposition with a large carbon footprint. They complain that the moratorium on new energy from waste capacity increases greenhouse gas emissions when waste is hauled long distances to out-of-state disposal facilities.  Environmental organizations counter that continued reliance on landfilling and combustion, as opposed to waste reduction and reuse, creates its own greenhouse gas problems.  

The principle divide in comments on the draft 2030 Master Plan is between industry pleas to lift the moratorium on new waste to energy capacity in order to improve in-state disposal capacity, countered by environmentalists’ insistence that to truly achieve their “Zero Waste” goal, no new capacity should be developed and that all existing waste to energy plants and landfills should be shuttered.  

The draft 2030 Master Plan really does not directly address either of these divergent points of view.  It certainly embraces the core concept of waste reduction by targeting a 90% reduction in disposal by 2050, but it also pragmatically recognizes the trend of increasing export of waste to distant states.  Since we face diminishing in-state capacity to trash the trash, and apparently little appetite in the public or private sector to take on the challenges of developing a new end facility to handle the dregs here in the Bay State, the draft 2030 Master Plan essentially acknowledges that rail is rapidly becoming a critical component of the state’s solid waste infrastructure.  The overwhelming industry trend right now is to permit rail handling facilities intended to take advantage of the lower rail transportation costs to landfills with large capacities and lower tipping fees in Ohio and other distant states, which the Commonwealth officially deems to be available capacity for Massachusetts waste. (While the majority of Bay State waste will head for the mid-west or south, Massachusetts will continue to truck a fair amount of waste to Waste Management’s Turnkey Landfill, just over the border in Rochester, New Hampshire, and to the landfills in Western New York State.)

Net Export Policy:  Back in the day, one of the policy goals of the Beyond 2000 Master Plan was that “on balance we should be neither a net importer nor a net exporter of trash.”  By the time the 2010 Master Plan entitled “Pathway to Zero Waste” was finalized in 2013, the MassDEP’s focus had shifted from providing for our own disposal capacity to “reducing waste and by recycling and composting more, [so that] we can reduce our need for overall disposal capacity and reduce the amount of waste that we will need to ship to other states for disposal as Massachusetts disposal capacity diminishes.”

Long gone now are those Yankee philosophy days “that we should take responsibility for managing our own solid waste.”  (If you nostalgically yearn for those days, I have a Victrola and some 78 records I would be happy to sell you.) Both industry and environmental groups criticize this de-facto export policy, for diametrically opposed reasons. Industry identifies the risk of import restrictions or market changes outside of Massachusetts’ control; whereas, environmental groups fear that continued exports will create a system with a vested interest in continued export for disposal that will undercut domestic waste reduction initiatives.

Recycling/MRFs/Organics:  Given its continued reliance on recycling, it is ironic that the draft 2030 Master Plan really does not grapple with the effects of China Sword on the recycling markets. Rather than take on the difficulties of the collapsed international market in recycled commodities, the Department is shifting its focus to remedies at home to try to improve the quality of recycled materials and develop markets.  To do so, it will develop working groups to produce comprehensive plans to foster source reduction and reuse opportunities and the development of markets.  The Department also intends to continue to use existing tools, such as grants and loans and new collaborations/partnerships to develop markets for food material, furniture and other bulky materials, glass, and textiles.  Commenters emphasized the need to invest further in recycling based, in part, upon the conclusion of the Massachusetts Materials Management Capacity Study that we are using 100% of available in-state recycling capacity.  (One would expect that we would have plenty of recycling or material recovery facility (MRF) capacity, given the relatively low permitting barriers to entry, but the unstable commodities markets for recycled materials appears to have stifled investment.)  Although most of the Department’s initiatives along these lines are universally supported, a proposal to mandate that all haulers provide recycling services raised concern among the haulers. As part of its waste reduction strategy, the draft 2030 Master Plan calls for a significant increase in organics diversion, including a planned expansion of the food waste disposal ban to capture much more organic material.  (The Department can take comfort in the fact that the Materials Management Capacity Study reported ample organics processing capacity.  However, the Department’s organics management framework has not escaped criticism by the environmental community, which argues strenuously against continued anaerobic digestion of food waste with biosolids, particularly in light of recent concerns about PFAS in biosolids and inability to reuse the resultant organic products.)

Energy from Waste:  Ten years ago in the “Pathway to Zero Waste,” the state opened its arms to new technologies, like pyrolysis and gasification. But nobody has taken up that opportunity. The moratorium on conventional energy from waste plants will remain in effect, except to the extent the seven existing plants will eventually need replacement.  However, continued reliance on energy from waste is not guaranteed. The Department intends to review the need for existing energy from waste facilities every five years and to require any replacement plants to meet more stringent efficiency and emission standards. As noted above, several environmental organizations are calling for the closure of the existing plants and that the partial lifting of the moratorium be ended, so that no new plants can be built.  The commenters continue to assert that emissions from energy from waste plants harm human health (particularly in the environmental justice communities, where some E from W facilities are located) and that they discourage the waste reduction and recycling that will be needed to achieve “Zero Waste.”

Landfills:  Although there is no official state mandated moratorium in place, there seems to be an unofficial municipal or private sector moratorium on new landfill capacity, since there are no current proposals for a new or significantly expanded MSW landfill.  Bourne and Crapo Hill are the two exceptions, with Bourne likely devoted to SEMASS ash and Crapo Hill husbanding its capacity for its Greater New Bedford Regional Refuse District member communities and limited outside MSW. Again, based upon their concerns over environmental and health impacts, the environmental organizations comments advocate for the phasing out of landfills as part of their vision for a Zero Waste future.

(It seems ironic to the author that Western and Central Massachusetts host only one MSW landfill, when just a decade ago, they were primo trash destinations.  What remains is only Waste Management’s Westminster Fitchburg landfill up north, with four years of remaining capacity. The Southeast Region hosts three municipal landfills: Bourne and Crapo Hill, mentioned above, and the small Middleboro landfill, run by Waste Management.  Nantucket takes care of island MSW.  And, of course, the Boston area, encompassed in the Northeast Region, would never agree to host an MSW landfill. Apparently, until Zero Waste is achieved, Hubsters will have to remain content to have their trash shipped out-of-state or converted to energy at one of the three energy-from-waste plants in the Region.)

New Waste Bans:  Within the next few years, the Department is going to propose additional bans on the transfer and disposal of organics, and perhaps mattresses and textiles. Commenters were generally very supportive of the state’s intention to double down on the existing organics ban to make it applicable to generators of one-half ton per week of food waste, which will capture many more generators and more organics volume than the existing one-ton per week applicability threshold.  However, certain environmental organizations generally argued that the state should go further and implement a ban on disposal of any food waste.  At least one industry commenter advocated for loosening of the restrictions on use of digestate from on-farm digesters.

Extended Producer Responsibility:  We would be remiss if we did not praise the 2030 draft Master Plan’s overarching goal to reduce waste 90% by 2050 as both good and ambitious. The goal relies, in part, on extended producer responsibility requirements that will admittedly require legislation.  Because Massachusetts is only a small part of the wider economy, ambitious plans to require companies, such as Amazon (whose gross sales equate to about one-half of Massachusetts’ GDP), to reconfigure all of its packaging, are unrealistic.  But less ambitious take-back initiatives, for paint, electronics and carpet should be achievable.  While some of these changes may isolate Massachusetts in the short-term, in the long-term, the Commonwealth will be able to take advantage of its early adopter status.  In a preface of legislative battles to come, comments from packaging producers embraced the Department’s use of “pay as you throw” programs and increased support for recycling, but did not endorse any form of packaging producer responsibility legislation.  

Climate Change:  Achieving the waste reduction goal will be key to the Commonwealth actually living up to the mandate of the Global Warming Solutions Act, to reduce GHG emissions 80% by 2050.  As in the case of waste export, both environmental groups and industry commenters jumped on the GHG reduction bandwagon, but for very different reasons.  Pragmatically expecting the need for continued waste disposal, industry commented that development of in-state capacity is essential to reduce GHG emissions from long-haul transportation (and E from W touted its GHG advantages over landfilling).  In a more puritanical approach, environmental groups want to eliminate waste disposal entirely to avoid the GHG emissions associated with excess production, consumption and disposal of goods.  Regardless, the changes in producer responsibility and materials management required to meet the MassDEP’s 90% waste reduction goal will pale in comparison to the economy-wide changes necessary to reduce GHG emissions to levels called for in the Global Warming Solutions Act. 

Whether future legislators and governors will have the political will to make the requisite drastic changes, is in serious doubt.  It was not that long ago, when the embattled Fall River Mayor backed off the City’s controversial purple bag “pay as you throw” program on the eve of his recall election.  Imagine the political backlash when voters are required to leave their cars at home and take mass transit to work.  

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Mackie Shea Durning PC secures an important ruling on the Water Management Act

Town of Concord’s water supply at Nagog Pond.

On October 11, 2019, Judge Jennifer S.D. Roberts of the Massachusetts Land Court issued a Memorandum of Decision granting summary judgment to the Town of Concord resolving a dispute among  Littleton, Acton and Concord regarding which statutory authority governed the water withdrawal rights from Nagog Pond.

Nagog Pond has  been a source of public drinking water for Concord since it took the pond via eminent domain in 1909.  Littleton and Acton argued that a provision in an 1884 Act, which gave Concord rights to Nagog Pond, reserved withdrawal rights for the two towns where the pond is located. Concord argued its withdrawal rights were superior to any provisions of the 1884 Act, because it held a Registration under the 1985 Water Management Act, which grandfathered qualified existing water withdrawal rights.

Mackie Shea Durning PC attorneys Peter Durning, John Shea, and Gail Magenau Hire compiled an analysis of the legislative history for the Water Management Act and provided a statutory interpretation of the language of the statute to demonstrate that the Legislature intended to repeal prior special acts, like the 1884 Act, as it set up a new regulatory regime under the Water Management Act.

In her written Decision, Judge Roberts confirmed that the Water Management Act was “a comprehensive statute that was designed to address a state-wide problem – the preservation and allocation of water resources” without regard for municipal or other political boundaries.  Judge Roberts noted that in its deliberations on the scope of the Water Management Act, the Legislature was concerned with pre-existing rights created by approximately 650 prior special acts regarding water withdrawals, like the 1884 Act. Judge Roberts affirmed that the legislature “chose to address that concern by registering existing water withdrawals and continuing those registrations, upon timely renewal, ‘forever’.”  Based on the language of the two statutes, Judge Roberts concluded the “1884 Act is repugnant to and inconsistent with” the Water Management Act and that any rights granted to Littleton and Acton under the 1884 Act were extinguished.

The Land Court’s Decision to uphold Concord’s Registration to withdraw water from Nagog Pond will allow Concord’s investment in the construction of a new state-of-the-art water treatment facility to go forward without a lingering concern that Littleton and Acton might attempt to usurp Concord’s Registration which perfected and protected its withdrawal rights at Nagog Pond.

MassDEP Issues New Health Advisory for PFAS

On Thursday, April 18, 2019, MassDEP issued a set of proposed revisions to the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”), including modifications to various notification provisions, new adequately regulated provisions for disposal-sites with Radioactive Materials, and updated to Reportable Concentrations and numerical cleanup standards for certain chemicals.  The most controversial set of the proposed  MCP  revisions are the new proposed Reportable Concentrations and cleanup standards for a large class of synthetic chemical compounds commonly called PFAS.

Though PFAS are now banned from being used in manufacturing processes in the United States, they were used for decades in consumer products and industrial applications, because they are resistant to heat, water, and oil. These same traits that made these chemicals attractive options for stain-resistant upholstery, water-proof clothing, microwave popcorn bags, and fire-fighting foams have been associated with health effects when the substances accumulate in the human body through ingestion and exposure.

There is no nation-wide consensus on a safe level of exposure to PFAS. Several states have set regulatory levels below the current EPA Health Advisory level of 70 ppt for the sum of PFOA and PFOS.

MassDEP established an Office of Research and Standards Guideline (ORSG) of 70 parts per trillion (ppt) for the cumulative total of five particular PFAS compounds in June 2018.  MassDEP’s announcement on Thursday proposed a Method 1 GW-1 standard of just 20 ppt for an expanded set of six PFAS compounds, including: PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly added PFDA (Perfluorodecanoic Acid).

While the announcement is not formal change to the ORSG, the announcement from MassDEP states the proposed regulatory package, “reflects an approach that is concurrently being considered for a revised MassDEP ORSG (drinking water guideline) used to evaluate public water supplies.”

These draft regulations for changes to the MCP are subject to a notice and comment period.  MassDEP issued a Public Hearing Notice for four public hearing will be held in May.  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall 2019.

While these proposed changes to the MCP are proceeding through the administrative review process, MassDEP will be drafting a second regulatory reform package to set a Maximum Contaminant Level (MCL) for PFAS in the drinking water standards for public drinking water systems in 310 CMR 22.00.  MassDEP initiated the process for establishing a new MCL for drinking water by soliciting input from stakeholders.

The first meeting of MassDEP’s PFAS MCL stakeholder group was last Thursday, April 11, 2019 at MassDEP Headquarters in Boston. John Shea participated in the stakeholder meeting.  Based on the representations at the stakeholder meeting, MassDEP is planning to conclude the rule-making process and establish a formal MCL during the coming winter (2019-2020).  The intent is for the MCP and MCL process to be complimentary.

The evolving standards for regulating PFAS pose serious concerns for water suppliers, developers, industrial actors, and municipalities.  We will continue to track regulatory developments with PFAS at the state and federal level.

For questions, contact Tom Mackie, John Shea, or Peter Durning.

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“SUPERFUND IS SEXY AGAIN.”

According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations.  These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations.  So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.

The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants.  They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks.  Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses.   While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.

One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications.  PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used.   In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations.  For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).

Another emerging contaminant is 1,4-dioxane.  1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents.  Because of their widespread consumer use, these compounds are found just about everywhere.  For example, 1,4-dioxane can be found in private septic systems and associated groundwater.  The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.

To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act.  Thus, as far as the federal government is concerned, there is no enforceable standard.  However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure.  For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory.  The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.

The law and regulations governing site assessments and remediation for these contaminants is still “emerging.”  While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard.  In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program.  But this Interim Guidance does not establish clear enforceable standards.  Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant.  Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.

Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site.  According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS.  She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action.  She indicated that there has been some discord between the federal and state governments over this issue.

PFAS can be in solid waste.  The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste.  Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs.  Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility).  This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.

To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air.  A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.

These emerging contaminants present a real challenge on a number of fronts.  Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment.  Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols.  Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.

Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants.  Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.

 

Does China Sword Trigger a Force Majeure Clause?

An April 2015 NW&RA/SWANA Joint Advisory presciently counselled “allowances for changes in the contract over time due to circumstances such as: acts of God, changes in market conditions (including but not limited to lack of commercially reasonable market availability for processed recyclables . . . and changes in law . . .). ”  Similarly, the MassDEP’s 1997 recycling Contract Template contains optional language requiring the hauler to provide “alternative recycling services and compensation to the municipality” if the contractor fails to accept recyclables because of facility or service failures “not resulting from a force majeure event.” Likewise, a municipal recycling collection/processing contract that we negotiated for a hauler in 2013 had a robust force majeure clause that excused defaults based upon “acts of government or regulatory authorities”. .  . “which substantially affect, impact or impede the Contractor’s or the Town’s operations.”

Whether you are a municipality or commercial customer reaping the benefits, or a hauler or processor whose contract is upside down, it behooves you to look into the possibility that the China Sword standard excuses performance of the contract as a force majeure event, change in law or perhaps under the contract doctrines of impossibility or frustration of purpose.

Without going into great legal detail, the bottom line is that a broadly drafted force majeure clause such as the one quoted above may excuse a hauler or processor from performance of its contract.  Under the example above, as an official standard of the Chinese Ministry of Environmental Protection, the China Sword standard is an act “of government or regulatory authorit[y]” that should qualify as a force majeure event.  If the new standard “substantially affect(s), impact(s) or impede(s) the Contractor’s operations,” the contractor’s failure to perform should be excused.  Alternatively, parties to longer term contracts may have a separate change in law clause that will require them to adjust or renegotiate price.

Absent either of these types of clauses, the parties may need to rely upon legal theories of impossibility or frustration of purpose to justify a renegotiation. However, it is worth noting that the Massachusetts courts do not favor these contract defenses where the issue is simply a change in price.  For example, in a construction dispute involving a spike in the price of steel, Judge Gordon of the Superior Court found no excuse for performance and noted that “unchanging prices and other cost-impacting conditions cannot realistically be considered implied assumptions of contracts at the time of execution, and, therefore, performance will not be excused under the doctrine of frustration of purpose merely because prices have fluctuated.”  Fargo Management LLC v. City of Worcester, Memorandum of Decision and Order on Summary Judgment, C.A. No. 2012-1028C (Worc. 2014).

For questions, call or email Tom Mackie.

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