Mackie and Shea in Best Lawyers

Mackie Shea, PC, the Boston boutique law firm, is proud to announce that  Thomas A. Mackie and John F. Shea have been selected by Best Lawyers® (2020 edition) for environmental law and environmental litigation.  Tom and John each have been recognized for over ten years.

Best Lawyers® is the oldest and most respected publication in the legal profession.  Recognition is widely regarded by both clients and lawyers as a significant honor conferred on a lawyer by his or her peers.  Listing is based entirely on a transparent survey process evaluating professional abilities and the quality of legal services.

Mackie Shea, PC concentrates in environmental, land use law, and related litigation.

The PFAS Zone

Picture if you will, a grey Friday morning in New England. While the mist lifts from the steeple just off the town green and kids shuffle to school bundled against the chill, during this inauspicious dawn on April 19, 2019, Massachusetts crossed over into the “PFAS Zone.” 

On that date, the Massachusetts Department of Environmental Protection (“MassDEP”) unveiled proposed changes to regulatory standards for certain hazardous materials in the state’s rulebook for conducting response actions to remediate contamination, the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”). 

The draft revisions address a class of per- and polyfluorinated compounds commonly referred to as PFAS. These synthetic compounds are valuable in industrial and commercial applications for their hydrophobic characteristics. They are used in stain-resistant carpets and upholstery, medical instrumentation, weatherproofing fabrics, car wash waxes, firefighting foams, and microwavable popcorn bags. It is estimated that PFAS is present in the bodies of 98% of the US population.

MassDEP’s proposal sets a reportable concentration and clean-up standards for PFAS in soil and groundwater. Significantly, the GW-1 cleanup standard for groundwater, which may contribute to drinking water, is just 20 parts per trillion (ppt) for the aggregate concentration of six different PFAS compounds. This value sets the baseline level that the state believes is acceptable to persist in the environment without causing an adverse impact on public health. Thus, even though the proposed cleanup standard in the MCP is not an express regulation on drinking water standards, in effect, the regulatory package sets forth the state’s proposed conclusion with respect to the acceptable amount of PFAS in drinking water that is protective of public health.

At the same time that the state released the draft regulations for the MCP, MassDEP also revealed its intention to set a maximum concentration limit (“MCL”) for PFAS in the regulations for drinking water during the winter of 2019-2020. Though MassDEP has just started a stakeholder process to receive feedback on an appropriate MCL for drinking water, it is very likely that MassDEP will propose 20 ppt as the maximum acceptable level of PFAS in drinking water as that process proceeds.

Bending the dimension of time, just days before making its public pronouncements unveiling its proposed rulemaking, MassDEP sent letters directly to water suppliers disclosing the formal start of the MCP comment period. While this communication revealed the proposed lower standards for protecting public health, it also reinforced the fact that, until the MCL has been established as a formal regulatory requirement, public water suppliers have no legal obligation to comply with the 20 ppt limitation on PFAS in drinking water. In this manner, public water suppliers were given the burden of deciding whether to comply with the most stringent proposed PFAS limit as soon as the proposed rule was announced, or to continue to plan and budget for compliance with the legal and regulatory requirements.

Indeed, while the proposed cleanup value for PFAS is a compelling basis for protecting public health, the press release from MassDEP only indicates the start of a public comment period. During that time, MassDEP is going to hold four public meetings – one in each of the four MassDEP regions. (See May 3, 2019 Public Notice for Revised meeting dates.) The Department will also accept written public comments as part of the administrative review process. Not only is the state’s expression of the “safe” level of PFAS in drinking water not yet law, it is likely that public comments will argue that such a stringent value is not necessary to avoid health impacts. In the end, MassDEP may reevaluate its conclusions about the appropriate PFAS level to protect public health.

The scientific community has not reached a consensus on the true impact of PFAS on human health. While there have been documented health impacts from the C8 Health Project funded by DuPont in the wake of major PFAS exposure in West Virginia, the root basis for the movement pushing the “tolerable” levels of PFAS lower and lower are predominantly rodent studies which do not necessarily correlate to the physiological conditions in humans. Much of the caution behind the regulatory fervor is driven by the fact that PFAS in pregnant women can cross the placenta barrier into embryos and through breast milk to infants. The possibility of PFAS being present in developing cells and the fear of complications stemming from these man made compounds in the body, are the main drivers of the health risk assessments. While these possibilities are concerning, it is unclear whether the potential health impacts to the sensitive populations are best addressed by public water system regulations.

Roughly, one week after the press release from MassDEP, US EPA released interim recommendations on PFAS. EPA issued guidance that “[i]n situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFAS over 70 ppt.” Like the limbo of the Massachusetts regulatory rulemaking process, this communication from EPA is not sufficiently instructive. The phrase “responsible parties will…” is not a clear mandate to prompt action to preserve and protect public health. 

Furthermore, EPA’s announcement specifically acknowledges, “toxicity information is being developed on additional PFAS and [EPA] will consider that information as it becomes available.” While the regulator’s candor is appreciated, this statement from EPA undermines the conclusion that water suppliers and PRPs must act expeditiously to avoid providing water with greater than 70 ppt of PFOA and PFOS – let alone over MassDEP’s expected combined standard of 20 ppt, because the toxicity information is still being developed and analyzed. 

Though by operation of law states can set more stringent contaminant levels than the federal government, for public water suppliers in Massachusetts, the decision by EPA to set 70 ppt as protective of public health contravenes MassDEP’s drive to adopt a much lower standard. Another confounding factor is that, despite the considerable attention on this issue, there is no consensus among the New England states on the proper limit. The differences stem from different assumptions made by the individual states’ health risk assessors, like the target human subject (VT- breastfeeding infants; NH – lactating female) and the volume of water the target subjects will consume in an average day.

Another significant difference between EPA’s approach and the regulations proposed by Massachusetts, is the number of regulated compounds. EPA’s health advisory only addresses PFOA and PFOS, while the current health advisory in Massachusetts requires the monitoring of five PFAS compounds and the proposed regulations set 20 ppt as the limit for a combined total of six compounds. The so-called “Massachusetts 6” consists of PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly-added PFDA (Perfluorodecanoic Acid). This regulatory approach adds yet another dimension to the PFAS Zone in Massachusetts, because it requires specialized testing, which may not be readily available from all vendors, and will certainly drive up monitoring and compliance costs within Massachusetts.

As with many of the scenarios in Rod Sterling’s harrowing TV series, a critical dimension of the PFAS Zone is the role of public perception. For the public at large, these disparate data points among states and the federal government and between current and proposed regulatory values sew confusion and concern. Members of the public who learn Massachusetts intends to lower its remedial standard for groundwater that may contribute to public drinking water resources to 20 ppt, would have an understandable basis to demand that their local water supplier must meet the proposed standard to protect public health today. While there is no legal obligation for water suppliers to meet the predicted 20 ppt standard, public opinion and MassDEP prodding is forcing public water suppliers with reported concentrations over 20 ppt to plan for the design and construction of expensive PFAS treatment systems.

Of course, no regulator or public water supply professional can ignore the signs indicating a public health crisis may happen on their watch.  The experience in Flint, Michigan is still seared in the minds of people who make frontline decisions on water quality and acceptable health standards. No one wants to be the next Flint. Perhaps justly, the lesson from Flint is to be proactive and ward off accusations of complacency when there is evidence of the potential for negative public health impacts from PFAS.

For public water suppliers in Massachusetts, there is no comfort in this Twilight Zone of guidance and proposed regulation. Water supply professionals must continue the daily vigilance to ensure clean and safe water. They must grapple with the fear that PFAS and other new synthetic “invaders” may appear that will require expensive cutting edge treatment. Emerging contaminants are causing all of us to finally recognize the true cost of drinking water.

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Environmental Law Update – Spring 2019

Emerging Contaminants: MassDEP has proposed reportable concentrations and clean-up standards for perfluoroalkyl compounds in the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (MCP).  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall, 2019.

Climate Change: Following up on an April, 2018 policy announcement, the EPA proposes to adopt regulations that would treat carbon dioxide emissions from power plants using managed forest biomass as carbon neutral.  

Renewable Energy: The Massachusetts Department of Energy Resources (DOER) has proposed regulations to revise the Class I and Class II Renewable Energy Portfolio Standard (RPS) regulations, including revisions to the efficiency standard for certain woody biomass to qualify for Class 1 Renewable Energy Certificates (RECs).

Solid Waste:  During 2019, the MassDEP will continue to hold Solid Waste Advisory Committee meetings to arrive at a draft 2020 Solid Waste Master Plan.  Subcommittees that will also be meeting include the source reduction, organics and C&D Subcommittees. In this connection, in February MSW Consultants provided the MassDEP with its final Massachusetts Materials Management Capacity Study which is intended to inform the development of the 2020 Master Plan.

NPDES: In April, the EPA issued an Interpretative Statement on Application of Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants from a Point Source to Groundwater, in which the Agency concludes “that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage. regardless of a hydrologic connection between the groundwater and jurisdictional surface water.” It will remain to be seen whether or not this interpretation will quell the conflict among the federal Circuits over the issue, highlighted last September when the Massachusetts District Court dismissed a citizen’s suit alleging violations of the NPDES program by Casella Waste Systems’ discharge of contamination to the groundwater at the Southbridge landfill in Toxics Action Center, et. al. v. Casella Waste Systems, Inc., et. al.  Hopefully, the United States Supreme Court will answer the question of NPDES jurisdiction when it takes up County of Maui, HI v. Hawaii Wildlife Fund on appeal from a Ninth Circuit decision extending jurisdiction to discharges to groundwater. 

Drought Management Plan

Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe.  Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies.  I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report.  I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.

If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission.  Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches.  There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9).  Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise.  However, large storms do not mean significant groundwater recharge or steady stream flows.  They mostly result in localized flooding and rapid stormwater flows.

Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.”  The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies.  I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.

Great Pond in Jan. 2017. Photo by Ed Baker

The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000.  It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013.  During the 2016-17 drought, the 2013 DMP was used and lessons learned.  EEA and MEMA are responsible for coordinating response efforts and communications with the public.  The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials.  The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.

MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection.  MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA.  Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program.  In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).

The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP.  There is no one-size-fits-all Drought Plan.  Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals.  Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems.  The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.

The DMP is considered to be a living document to be updated and revised based on experiences.  The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.

WOTUS, POTUS and SCOTUS: The Future of Clean Water Act Jurisdiction

In our Spring and Fall 2015 and Spring 2017 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the Rule) on the scope of jurisdictional Waters of the United States (WOTUS).  In 2015, President Obama, the EPA and the Corps issued a Rule (the 2015 Rule) that sought to codify existing criteria that EPA and the Corps had been applying on a case-by-case basis, using the three alternative tests announced by the Supreme Court of the United States (SCOTUS) in Rapanos v. United States, 547 U.S. 715 (2006).  A flood of litigation resulted.  Even before the 2015 Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits.  On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide and agreed with the federal government that the 2015 Rule was reviewable exclusively in the circuit court of appeals.  SCOTUS agreed to decide the narrow jurisdictional issue.

In January 2018, SCOTUS issued a decision in Nationwide Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018), authored by Justice Sotomayor, which ruled that the appropriate forum for challenging the 2015 Rule is a federal district court.  SCOTUS reversed the Sixth Circuit and remanded with instructions to dismiss the petitions for lack of jurisdiction, and to vacate the nationwide injunction against the 2015 Rule.

President Trump in 2017 issued an Executive Order directing EPA and the Corps to vacate the 2015 Rule.  In February 2018, EPA and the Corps finalized a Rule (the 2018 Rule) that mirrors Justice Scalia’s opinion in Rapanos and delayed implementation until 2020.  Two district courts found the rulemaking to be arbitrary and capricious because EPA and the Corps issued the 2018 Rule without seeking meaningful public comment, and issued nationwide injunctions.  Three more district courts issued preliminary injunctions barring the use of the 2018 Rule in 28 states, because the POTUS agencies exceeded their authority under the Clean Water Act.  As a result of the federal court rulings, the 2015 Rule is still effective in 22 states, including Massachusetts. 

It will take another decade before there is a Final Rule on the scope of jurisdictional waters of the United States for future permitting of activities in wetlands and on adjacent lands, and enforcement actions under the CWA by EPA, the Corps and environmental groups.  The years will be marred by the inevitable rulemaking hijinks, and federal lawsuits challenging the rulemaking procedures and the substance of any proposed new Rule.  An enlightened and unified Congress could amend the CWA to better define the geographic and regulatory scope of WOTUS.  Without a Final Rule, decisions on proposed projects will continue on a case-by-case basis, using the three alternative tests announced in Rapanos, EPA and Corps guidance documents, criteria in a draft Rule, and Massachusetts practice and precedent.  Developers and landowners will need environmental lawyers and engineers who are immersed in the turbulent WOTUS.

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The Right Whale

The nearly extinct and endangered North Atlantic Right Whale is not holding its collective breath hoping the late Leonard Nimoy (“Spock”) will again time travel to our century to capture and transport two Right Whales (instead of the humpbacks George and Gracie) to the 23rd century to repopulate the species and save the Earth from an alien probe causing destructive climate change on Earth because there are no whale songs.  Star Trek IV:  The Voyage Home (1986).  Absent the Enterprise crew on a desperate mission to save mankind, we are using law and science to stave off extinction of the Right Whale in the 21st century.

The Right Whale can reach 60 feet in length and weigh 100 tons.  There are fewer than 411 individuals, including 100 breeding females, living in the remaining habitat close to the continental shelf on the East Coast.  The waters off Massachusetts are home to this rarest of all large whales.  They were named by whalers who identified them as the “right” whale to kill on a hunt because they are slow, swim close to shore, float to the surface after death, and produce a lot of oil.  Today, the leading causes of death are blunt force from ship strikes during migration through the busiest shipping lanes, entanglement in fishing gear, and bioacoustic impacts to calling and reproductive behaviors.  The species has low annual reproductive rates from deaths, and diminishing food sources due to climate and ocean process changes (in 2017, about 17 females were killed, and in 2018, no new calves were born).  Since the 1980s, females are now raising a baby once per decade. 

Hunting of the Right Whale was banned world-wide in 1937 and has steadily diminished.  Right Whales are listed as “species with extinction … affected by trade” (“CERES”), and as “endangered” by the IURN Red List based on extinction risk.  They are listed as “endangered” under the Endangered Species Act (“ESA”) and as “depleted” under the Marine Mammal Protection Act (“MMPA”).  In 2009, the National Ocean and Aeronautics Administration) “NOAA”) and the National Marine Fisheries Service (“NMFS”) (“NOAA Fisheries”) limited vessel speed to 10 knots in shipping lanes during the annual migration and where Right Whales gather during calving season.  NOAA Fisheries designated critical habitat in 1994 and revised the designation in 2016.  NOAA Fisheries and the Coast Guard have implemented a mandatory vessel reporting system:  When large vessels enter two key habitats, they must report to a shore-based system which advises about locations of recent Right Whale sightings, and precautionary measures to avoid strikes.  NOAA Fisheries has a “500-yard rule” prohibiting approaches of Right Whales by all fishing boats and recreational boaters, kayakers, surfers and paddle boarders.

NOAA Fisheries supports management measures to reduce whale entanglements in fishing gear, which is a primary cause of death, serious injury and reduced fertility.  As they feed, whales get entangled in vertical lines from buoys attached to lobster and crab pots on the ocean bottom, get trapped and drown, or suffer injuries from deep cuts to the body.  New gear has buoy lines that automatically release when pressure is applied by whales.  Ropeless technology with GPS and grappling hook or an inflation buoy is being evaluated and is promoted by Charles “Stormy” Mayo, Director of the Right Whale Ecology Program at the Center for Coastal Studies in Provincetown, who has been a “save the whale” activist since the 1980s.  Since 2014, NOAA Fisheries has banned lobstermen from setting traps in Cape Cod Bay between February 1 and April 30, and closed fishing in the Great South Channel southeast of Chatham between April 1 and June 30. 

Science is keeping track of the whales through ship and plane photography, electronic tags, and a network of 13 detection buoys listening for Right Whales in Massachusetts Bay.  The Center for Coastal Studies conducts early morning aerial surveillance from fall to spring.  The Center reported that about 221 Right Whales, or 54 percent of the population, were spotted in Cape Cod Bay.

Underwater noise interrupts normal behavior and may cause strandings.  Anthropogenic sound from Navy sonar and oil and gas seismic air gun blasts for proposed offshore oil and gas drilling may increase stress and health effects in Right Whales.  In March 2018, the U.S. District Court for the District of Alaska declared illegal President Trump’s order revoking an Obama ban on oil and gas drilling in the Arctic and Atlantic Ocean (Case No. 3-17-CV-00101-SLG).  The ruling tossed out the President’s unlawful order and restores inter alia permanent protections to 31 biologically rich canyons in the Atlantic Ocean which are critical habitat for the Right Whale and other species. 

In February 2018, Conservation Law Foundation and Earthjustice filed a lawsuit against the Secretary of Commerce and the National Marine Fisheries Service seeking declaratory and injunctive relief that the federal agencies failed to prevent jeopardy and unlawful takes of Right Whales from entanglement by the American lobster fishery in violation of the ESA, MMPA and the Administrative Procedure Act.  (Case 1:18-CV-00283; U.S. Dist. Ct. for D.C.).

On January 23, 2019, Vineyard Wind and CLF, the Natural Resources Defense Council, and the National Wildlife Federation entered into an agreement to protect Right Whales during the installation and operation of its proposed 84-turbine project in the lease of 160,000 acres a/k/a OSC-A-501, south of Martha’s Vineyard.  The agreement seeks “to minimize disruption of normal feeding, breeding and migratory behaviors and prevent injury to Right Whales.”  Turbine construction will not occur during the winter and early spring when whales may be in the area.  There will be seasonal restrictions on pile driving.  There will be monitoring to ensure construction does not occur when whales are near the site.  Real-time acoustic monitoring with a range of 10,000 meters will detect Right Whales within the clearance zone and result in construction shutdown.  Geophysical surveys will be seasonally restricted.  Construction noise levels will be reduced and attenuated so as to minimize impacts on the whale’s ability to communicate, locate food and migrate.  There will be a strict vessel speed limit of 10 knots.  The developer will also invest $3 million to develop and use innovative technology and fund scientific research.

In June 2018, Congress introduced legislation to protect the Right Whale.  Senate bill S 3038 and the companion House of Representatives bill H.R. 6060 were purely Democratic initiatives.  The SAVE Right Whales Act of 2018 would require a transition to buoyless fishing gear and provide $5 million per year for ten years for conservation programs aimed at rebuilding a healthy population of Right Whales; specifically, for funding projects to develop, test and use innovative technology to reduce entanglements in fishing gear and vessel collisions.  Given the divisiveness in Congress and penchant for military funding, it may be easier to fund faster than light space research than Right Whale protection!  

Firm Activities

John Shea attended the VIP Grand Opening Celebration of the Artis Senior Living of Lexington Memory Care Community.  Artis purchased the property from an old Yankee farmer who believed he could do absolutely anything to or on his land, irrespective of zoning and environmental laws.  Consequently, from 1982 to 2011, he filled acres of wetlands, riverfront area and buffer zone, and contaminated the groundwater.  John led the Artis team of a wetland expert, a Licensed Site Professional, and engineers to restore and remediate the property under an Administrative Consent Order with MassDEP.  The facility and grounds are beautiful.  Artis provides state-of-the-art care for residents with Alzheimer’s and related dementia. Individual living quarters are grouped into four houses with distinct homelike entries, dining rooms and open kitchen, centered on a Neighborhood Square featuring amenities to enable social engagement and emotional connection.

Tom Mackie and John Shea have updated their chapters on Solid Waste Law and Hazardous Waste Cleanup Law to the MCLE treatise Massachusetts Environmental law.

In December, Tom manned the Keep Massachusetts Beautiful booth at the annual Massachusetts Municipal Association conference along with fellow Board Members Steve Changaris and Neil Rhein.

In January, for the third year running, Tom moderated EBC’s Evening with then EEA Secretary Matthew Beaton. 

At MassRecycle’s March R3 Summit, Tom moderated a panel of experts on Contracting from Both Sides of the Equation, which provided invaluable insight into contracting for recyclables processing by municipalities and private haulers in the wake of China’s National Sword ban on recyclable imports.

Peter Durning moderated a panel on wood waste at the EBC’s C&D Summit in January.

At SWANA’s February Extended Producer Responsibility (EPR) Summit, Tom presented on developments on the EPR front in the context of the Massachusetts solid waste market.

Firm Successes

Gail Magenau Hire’s parents, Tom and Mary Beth Magenau, won the 2019 National Wetlands Landowner Stewardship Award from the Environmental Law Institute for wetlands restoration work at their Tri-State Marine (TSM) dealership in Deale, Maryland.  For more than 50 years, the Magenaus have combined business goals with sustainable practices to protect the Chesapeake Bay.  Their recently completed, state-of-the-art, green infrastructure project provides habitat and food for wildlife and protects Herring Bay by filtering runoff to one of its tributaries.  From humble beginnings in 1965, TSM has grown into a successful, full service marine business that sells and services powerboats up to 37 ft.  Starting in 1999, TSM has funded complex permitting and specific land acquisitions, including placement of 40 acres into permanent conservation that led to this project’s feasibility.  The Executive Director of the Arundel Rivers Federation described the project as “the first public private partnership for storm water management in South Anne Arundel County and will prevent nearly 10,000 pounds of sediment to annually flow into the nearby creek.”  Anne Arundel County’s incentive program allows a fifty percent reduction in stormwater fees for such voluntary and sustainably-managed stormwater projects.  Other benefits included construction jobs and student and community group engagement. 

The firm and its three shareholders were recognized again as one of the top environmental law firms in Massachusetts in the 2019 edition of Chambers USA Guide.  According to Chambers, the firm is known for its “respected practice, 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 attorneys “understand the Massachusetts regulations extremely well and have the ability to strategize in the context of the state and local political realities.” The firm’s lawyers are “professional, responsive, knowledgeable and skilled.”

Peter Durning prevailed on motions in the Supreme Judicial Court and the Land Court on a water rights dispute between two municipalities.

John Shea negotiated an Administrative Consent Order with Penalty (ACOP) with MassDEP for a national home builder.

Tom Mackie negotiated an ACOP with MassDEP for a commercial wastewater treatment facility.

Since our most recent newsletter, Tom represented clients in solid waste site assignment hearings resulting in modification to an existing site assignment allowing the vertical expansion of an ash landfill; a site assignment for a new rail served handling facility, and modification to an existing site assignment allowing a construction and demolition debris handling facility to accept municipal solid waste.