Massachusetts Environmental and

Land Use Alert

Massachusetts Environmental Developments

Multi-Sector General Permit for Stormwater Discharges – Newly Issued and Newly Challenged

U.S. EPA issued a new Multi-Sector General Permit for Stormwater Discharges from Industrial Activities on June 4, 2015, replacing the 2008 general permit, which expired in September 2013 and had been administratively continued for covered facilities pending reissuance. Shortly after issuance, the new permit was challenged by several environmental groups, which filed separate petitions for review in three different U.S. Courts of Appeals.

Massachusetts Issues Guidance on Addressing 1,4 Dioxane Sites

MassDEP issued a fact sheet in June identifying special considerations for responding to releases of 1,4-dioxane (“dioxane”), which was primarily used as a stabilizer and corrosion inhibitor as an additive to chlorinated solvents but can also be erroneously detected because of its use in environmental sampling.

RMP and General Duty Clause Enforcement Continues at EPA Region 1

As we reported last year, the U.S. EPA has stepped up its enforcement activity under the risk management provisions of the Clean Air Act (“CAA”), Section 112(r), focusing on both the Risk Management Plan (“RMP”) program rules and the General Duty Clause (“GDC”). The RMP requirements help prevent accidental releases of substances that can cause serious harm to the public and environment from short-term exposures and also help reduce the severity of releases that do occur. Background on these programs is available in our prior article .

Public Records in Massachusetts: Legislature looks to Improve Access and Top Court Clarifies Attorney-Client and Work-Product Protections

The combined efforts of Massachusetts’ highest court, its legislature, and the Governor’s office are clarifying and modernizing Massachusetts public records law, which is considered by some to be one of the weakest in the country. Pending legislation could change that, making it easier to obtain records and enforce the law’s provisions. At the same time, a recent decision of the Supreme Judicial Court of Massachusetts clarifies the scope of the “policy deliberation” exemption to Massachusetts’ public records law and the applicability of the attorney-client privilege and work-product doctrine. Governor Charlie Baker recently weighed in as well, with new procedures aimed at increasing transparency and streamlining responses to public records requests. These developments may have a significant impact on citizens, businesses, municipalities, and litigants.

Massachusetts Land Use Developments

Massachusetts Issues Draft Interim Policy on Re-Use of Soil for Large Reclamation Projects

After nearly a year of evaluation, MassDEP has issued a draft policy requiring an Administrative Consent Order (ACO) for large-scale projects that fill or reclaim quarries, sand pits, and gravel pits. Comments on the policy were due June 17, 2015. This effort has been driven by a requirement in the fiscal year 2015 budget that required MassDEP to develop a policy for such projects by June 30, 2015. Large fill projects that do not involve quarries, sand pits and gravel pits are not covered by this draft policy.

Flushing Out the Safe Harbor: “General Land Area Minimum” Offers Newton No 40B Shelter

Municipalities long unable to achieve ten percent affordable housing are now turning more frequently to a different Safe Harbor to block development of low and moderate income housing – compliance with the “General Land Area Minimum” of Chapter 40B’s affordable housing regulations. In its first detailed ruling on the topic, the Housing Appeals Committee (HAC) expanded the denominator (municipality’s total land area) and shrank the numerator (total land area occupied by eligible affordable sites) leaving the City of Newton floating outside of this 40B Safe Harbor and facing a Comprehensive Permit application for a 135-unit affordable housing project. As demonstrated in In the Matter of Newton Zoning Board of Appeals and Dinosaur Rowe, LLC, HAC No. 15-01, with the burden of proof squarely on municipalities to prove compliance with the “General Land Area Minimum,” cities and towns face significant challenges qualifying for this Safe Harbor.

National Developments

TSCA Reform Nears Enactment with Easy Passage in the House

The House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576) on June 23, 2015 by a vote of 398 to 1, indicating that the long-awaited overhaul to the federal chemicals management law may be just around the corner. Among other updates to the Toxic Substances Control Act (TSCA), the House bill would require EPA to initiate risk evaluations of chemicals in commerce and adopt regulations if a chemical presents an unreasonable risk to human health or the environment under the intended conditions of use. In addition, the bill would expand EPA’s authority to require testing by manufacturers, adjust provisions protecting confidential business information, create the TSCA Service Fee Fund in the U.S. Treasury, and preempt state law where EPA issues a new rule or makes an “unreasonable risk” determination.

China’s Top Court Clarifies Environmental Tort Liability Standards

On June 1, 2015, China’s Supreme People’s Court (“SPC”) issued an interpretation, The SPC Interpretation on Several Questions Concerning Applicable Law in the Adjudication of Environmental Tort Liability Dispute Cases (“Interpretation”), clarifying key principles in environmental tort cases. The Interpretation became effective on June 3, 2015 and governs certain civil lawsuits with underlying claims stemming from environmental pollution and ecological damage. The Interpretation reflects the SPC’s most recent effort to unify standards for Chinese courts to adjudicate environmental tort claims from several widely applicable statutes.

EPA, Army Corps Redefine Clean Water Act Jurisdiction

The Environmental Protection Agency and the Army Corps of Engineers have issued the long-awaited final rule to define the scope of waters and wetlands subject to federal jurisdiction under the Clean Water Act, available online here. The final rule offers notable changes from the proposed rule in an attempt to resolve years of debate and confusion in the wake of perplexing Supreme Court decisions and failed guidance by the agencies. While the final rule does provide clarity on some aspects of the meaning of “waters of the United States”, ambiguity remains. The rule retains case-by-case “significant nexus” determinations for potentially jurisdictional waters, meaning that regulatory confusion and uncertainty will persist. Even though the agencies assert that the final rule will result in a less than 5% increase in waters found to be jurisdictional, that is far from certain. Congress and the courts will have their say, with the fate of WOTUS most likely remaining in the hands of Supreme Court (again).

Cosmetic Safety Legislation Introduced, Again

In what is the latest in a line of Congressional proposals to beef up the federal government’s authority to regulate cosmetics, Senator Dianne Feinstein (D-CA), has proposed a bill aimed at dramatically increasing Food and Drug Administration (FDA) oversight of the chemicals found in cosmetics and personal care products. The Personal Care Products Safety Act , S. 1014 mirrors past proposals considered by Congress, albeit with a number of differences from past bills. The bill, which would make substantial revisions to the Federal Food, Drug, and Cosmetic Act (FFDCA) chapter on cosmetics, was proposed on April 20, 2015, and referred to the Committee on Health, Education, Labor, and Pensions.

Wildlife Agencies Propose Overhaul of ESA’s Petition Process for Species Listings

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”), the two agencies that administer the Endangered Species Act (“ESA”), recently published a proposed rule designed to improve the content and effectiveness of the species listing petition process. See 80 Fed. Reg. 29,286 (May 21, 2015), available here . The proposed rule seeks to streamline the petition process for the Services and increase the quality of petitions by eliminating multi-species petitions and requiring petitioners to coordinate with the state agencies in locations where each species lives.

Firm News & Events

Beveridge & Diamond Expands Wellesley Office with Arrival of Brook Detterman

We are pleased to announce that Brook J. Detterman has joined the Firm as an Associate in Wellesley. Mr. Detterman’s practice encompasses both traditional environmental matters and emerging issues in the areas of energy and climate change. His experience also includes complex environmental litigation, transactional due diligence, and regulatory counseling, with a focus on the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other state and federal environmental laws.

MassDEP General Counsel Nancy Kaplan Joins Wellesley Office of Beveridge & Diamond, P.C.

Nancy Kaplan , who has served since 2011 as the General Counsel of the Massachusetts Department of Environmental Protection (MassDEP), joined Beveridge & Diamond, P.C. (B&D) as Of Counsel in the Firm’s Wellesley office on May 18, 2015. From her tenure as MassDEP’s chief legal officer and decades of private practice, Ms. Kaplan brings significant experience with all aspects of environmental and land use permitting, litigation, and regulatory compliance and enforcement defense.

Beveridge & Diamond Secures Major Clean Water Act Ruling in U.S. Court of Appeals for Seventh Circuit

On July 9, 2015, Beveridge & Diamond secured a unanimous published opinion from the U.S. Court of Appeals for the Seventh Circuit rejecting a citizen suit challenge under the Clean Water Act. Beveridge & Diamond represented the Metropolitan Water Reclamation District of Greater Chicago (MWRDGC) in a case brought by several environmental groups challenging the consent decree that the District had negotiated with the U.S. that provides for multibillion dollar investments to improve wastewater collection and treatment in the Chicago area. The opinion establishes important precedent limiting the ability of private litigants to challenge settlements reached with federal and state enforcement authorities on complex environmental issues.

Beveridge & Diamond Again Named to National Law Journal's "Midsize Hot List"

The National Law Journal has again included Beveridge & Diamond on its "Midsize Hot List." The list recognizes 20 law firms of between 50 and 150 lawyers that demonstrate creative strategies that keep them competitive against much larger law firms. 2015 marks the fourth time that Beveridge & Diamond has been so honored, having previously been recognized in 2011, 2012, and 2013.

Chambers USA Again Ranks Beveridge & Diamond, P.C. Among Leading Law Firms

The Chambers USA Guide to the Legal Profession again ranked Beveridge & Diamond, P.C. as a leading environmental law practice, nationwide and in California, the District of Columbia, Massachusetts, New York, and Texas. In addition to firm-level rankings, Chambers recognized 12 lawyers individually as leaders in their fields.

Beveridge & Diamond Named a Top 100 Law Firm For Female Attorneys by Law360

We are pleased to announce that Law360 has named Beveridge & Diamond to its list of 100 Best U.S. Law Firms for Female Attorneys. Commenting on the listing, Paula Schauwecker , Beveridge & Diamond's Diversity & Inclusion Principal, said, “We are dedicated to making Beveridge & Diamond a place where women find a successful and meaningful blend of professional and personal achievements, and are committed to finding new ways to increase our support for the women who join our firm. We appreciate this latest recognition of our commitment to diversity and inclusion.”

Authors

Marc J. Goldstein

Principal

(781) 416-5715 mgoldstein@bdlaw.com

Jeanine L.G. Grachuk

Principal

(781) 416-5713 jgrachuk@bdlaw.com

Nancy Kaplan

Principal

(781) 416-5755 nkaplan@bdlaw.com

Brian C. Levey

Principal

(781) 416-5733 blevey@bdlaw.com

Stephen M. Richmond

Principal

(781) 416-5710 srichmond@bdlaw.com

Brook J. Detterman

Associate

(781) 416-5745 bdetterman@bdlaw.com

Heidi P. Knight

Associate

(410) 230-1344
hknight@bdlaw.com

Virginie K. Roveillo

Associate

(781) 416-5726 vroveillo@bdlaw.com

Beveridge & Diamond has 100 lawyers in seven U.S. offices who focus on environmental, project development, and natural resource law, litigation and alternative dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations.

Our Massachusetts team helps clients manage their environmentalissues and provides land use, environmental, and all related litigation services to development projects for industrial, commercial and residential clients. We offer focused expertise and personalized, efficient service from lawyers who know the landscape for business in Massachusetts.

Massachusetts Office
15 Walnut Street
Wellesley, MA 02481
(781) 416-5700

Learn more at www.bdlaw.com .

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