MassDEP to Open 2020-2030 Solid Waste Master Planning

This summer the MassDEP Solid Waste Advisory Committee will begin reviewing “Pathway to Zero Waste,” the 2010-2020 Solid Waste Master Plan. While it may seem early for the Committee to start the process for a 2020 plan, this is a notoriously slow process.  The MassDEP did not issue the 2010-2020 Master Plan until April of 2013, so starting three years before 2020 seems about right.

Although the Department has not set an agenda, the focus should be on raising the flattened waste reduction curve and responsibly managing the waste that is generated.  Environmental groups will continue to advocate “zero waste,” pushing for more waste bans and better enforcement of existing bans. Meanwhile, they will continue to actively oppose expansions of existing disposal or new facilities by drumming up fears of public health and environment harm.

The solid waste industry has openly embraced economically viable zero waste solutions (while quietly investing in waste export rail infrastructure). Industry skepticism is fueled by the economic realities of a protracted soft market for recyclables, relatively low local disposal pricing and high profile siting battles.  The wisdom of continued reliance on waste export as opposed to lifting the moratorium on new municipal solid waste combustion capacity will be front and center on the industry agenda.

For questions, call or email Tom Mackie a newly appointed member of the Solid Waste Advisory Committee.

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2017 EPA Construction General Permit

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

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

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

High Court Declares MassDEP Deficient in Regulating Greenhouse Gases

Yesterday, in Kain v. Department of Environmental Protection the Supreme Judicial Court declared that the MassDEP had failed to properly implement the requirements of the Global Warming Solutions Act. Specifically, the Court found that the department is required “to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

The Court found that although the MassDEP’s Regional Greenhouse Gas (“RGGI”), low emission vehicle (“LEV”) and sulfur hexafluoride leak regulations were “important to the overall scheme of reducing greenhouse gas emissions over time, they do not fulfill the specific requirements of” the Global Warming Solutions Act.

It remains to be seen how the MassDEP and the legislature will react to the decision. Will the MassDEP begin a whole new round of regulatory initiatives mandating greenhouse gas emissions reductions over a wide array of sources or will the legislature reconsider the economic and environmental impact of a the mandate of the Global Warming Solutions Act?  Which ever way the Administration and legislature eventually choose to go, this case opens up a whole new spectrum of issues for project proponents, opponents and regulators.  At a time where the MassDEP’s budget is continuing to shrink, has lost many senior staffers to early retirement and is proposing to take on the NPDES permitting program, one wonders how it will take on the herculean task of regulating greenhouse gas emissions across a broad array of sources.  One saving grace in the decision, on which the Department may hang its hat, is the Court’s observation that “there is nothing in the statutory language to indicate that the department must regulate every source of emissions in the Commonwealth” and that “the department has discretion to select what sources of emissions it will regulate . . .”

If you would like to discuss any of these observations, please do not hesitate to contact us.

For questions, call or email Tom Mackie.

Status of MassDEP Regulatory Review Under EO 562

Shortly after his inauguration, Governor Baker ordered all state agencies to review “each and every regulation” against an ambitious set of criteria to “reduce the number, length, and complexity of regulations, leaving only those that are essential to the public good.” Executive Order: 562 “To Reduce Regulatory Burden” required that each Agency shall sunset all its regulations on or before March 31, 2016.

Despite this opportunity, the regulated community submitted only a handful of written requests for regulatory changes to the EOEEA (which administers over 125 environmental regulations). Thus, it is not surprising that MassDEP’s Preliminary Regulatory Recommendations apply to only 19 of the 64 regulations it administers.
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It’s Time to Restore the Promise of the Permit Session.

In the September 14, 2015 issue of Massachusetts Lawyers Weekly, Tom and Peter provide their opinion on recent judicial efforts to undermine the legislature’s intent in passing the Permit Session Statute. With this issue poised to go to the Supreme Judicial Court, this is a good time to restore the promise of the Permit Session.

False Claims Act – Be Warned

Although Charlie Baker sent business a friendly message with his Executive Order suspending new regulations, Attorney General Maura Healey and her staff of Assistant AGs in the Environmental Protection Division are not so charitable.  Yesterday, four senior AAGs presented on the use of the False Claims Act against environmental violators. The False Claims Act is a “very strong tool” and they are “anxious to use it.”  In translation, “watch out” if you are engaged in business with the government and unfortunate enough to get into a related environmental beef that is referred to the AG.

The AG’s Office is increasingly using False Claims allegations to soften up environmental enforcement targets with additional investigative tools, increased penalties and the specter of triple damages (i.e. disgorgement of up to 3X any economic benefit).  Liability can be established if a defendant makes a “false statement” to the government (or any of a host of other related parties like government contractors and subcontractors) that results in an underpayment to or overpayment from the government.
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