Massachusetts Environmental and

Land Use Alert

Massachusetts Environmental Developments

New Massachusetts Governor Issues Three-Month Freeze on New Regulations

Just a week after being sworn in, Governor Charlie Baker imposed a “regulatory pause” on new state regulations with certain exceptions. The temporary ban will last through March 31.

Environmental Justice in Massachusetts

Over the past several months, there has been a flurry of activity on environmental justice in Massachusetts, and more developments are expected shortly. This short summary is intended to recap a brief history of the way environmental justice principles have been applied in Massachusetts permitting, discuss the key policies that are currently in effect, and describe what is pending on the immediate horizon.

MEPA Climate Change Adaptation and Resiliency Policy Available for Public Comment

The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) is accepting public comments on its proposed draft Massachusetts Environmental Policy Act (MEPA) Climate Change Adaptation and Resiliency Policy .

EPA Region 1 Extends Deadline for Comments on New MS4 Small Municipal Separate Storm Sewer Systems General Permit for Massachusetts

EPA Region 1 has extended the deadline for the submission of comments to February 21, 2015 in response to the Draft General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (known as MS4 systems). The 2003 MS4 General Permit, issued under the National Pollutant Discharge Elimination System program, expired in 2008 and has been administratively extended.

MassDEP Finalizes Underground Storage Tank Regulations

MassDEP’s new regulations governing Underground Storage Tanks (USTs) became effective January 2, 2015. The new regulations address the design, construction, installation, registration, operation, maintenance, and inspection of UST systems.

Massachusetts Moves to Require Permits for “Large” Fill Projects

Because it will take time to develop regulations announced in December requiring permits for large-scale fill projects including both reclamation of quarries, sand pits and gravel pits, and redevelopment projects, MassDEP plans to issue this month a policy that would allow any such project to proceed under an administrative consent order.

Massachusetts Land Use Developments

Court Upholds By Right Reconstruction Of Dimensionally Compliant Nonconforming Use

Closing another loophole in law of nonconforming structures and uses, the Massachusetts Appeals Court has held that no zoning relief is required to tear down and reconstruct a nonconforming use that is dimensionally conforming.

A Municipal Ordinance Requiring Registration and Maintenance of Vacant or Foreclosed Properties Preempted under Chapter 21E

A municipal ordinance imposing registration and maintenance obligations upon owners and secured lenders of buildings that are vacant or undergoing foreclosure was preempted by the Massachusetts remediation and clean-up statute known as Chapter 21E, according to the top Massachusetts court. 

National Developments

EPA Revisions to Definition of “Solid Waste” Change the Regulatory Landscape for Hazardous Recyclable Materials

On December 10, 2014, the Administrator of the U.S. Environmental Protection Agency signed a final rule revising the definition of “solid waste” for purposes of the federal hazardous waste regulatory program under the Resource Conservation and Recovery Act (“RCRA”). This definition is a key element of the RCRA regulations, inasmuch as only solid wastes can be subjected to regulation as hazardous wastes.

EPA Significant New Use Rule for Benzidine-Based Substances Signals Broader Approach to Regulating Chemicals in Articles

On December 29, 2014, the Environmental Protection Agency published a final significant new use rule with potentially broad implications for future chemical management policy under the Toxic Substances Control Act.

DOI Proposes Overhaul Of Federal And Indian Mineral Lease Royalty Valuation Standards

On January 6, 2015, the Department of the Interior’s Office of Natural Resources Revenue issued a proposed regulation that would substantially modify existing regulations in 30 C.F.R. Part 1206 for the valuation for royalty purposes of oil, gas, and coal from federal leases onshore and on the Outer Continental Shelf.

CPSC Proposes Additional Phthalate Restrictions

The U.S. Consumer Product Safety Commission has published a notice of proposed rulemaking in the Federal Register proposing to make more stringent a federal prohibition on phthalates in many children’s products.

Greenhouse Gases “Rise” in Importance for NEPA Reviews 

Just before Christmas, the White House Council on Environmental Quality published revised draft guidance intended to direct federal agencies on when and how to consider the effects of greenhouse gas emissions and climate change when evaluating the environmental effects of proposed agency actions under the National Environmental Policy Act.

Congress Finally Enacts Chemical Facility Security Legislation 

In a rare bipartisan gesture, on December 11, 2014, the House of Representatives unanimously passed H.R. 4007, the “Protecting and Securing Chemicals Facilities from Terrorist Attacks Act of 2014,” which the Senate had passed previously.

EPA Regulates Coal Combustion Residuals as Solid Waste and Retains Exclusions for Beneficial Use

On December 19, 2014, EPA issued a final rule regulating coal combustion residuals (CCR) as solid waste under Subtitle D of the Resource Conservation and Recovery Act.

EPA Proposes to Revise Ozone NAAQS

On November 25, 2014, EPA issued a proposal to revise the National Ambient Air Quality Standards for ozone.

California Proposition 65 Warning Requirements for DINP Effective December 20, 2014

On December 20, 2014, California’s Proposition 65 warning requirements for consumer, occupational, and environmental exposures to diisononyl phthalate took effect.

Conflict Minerals: D.C. Circuit to Reconsider Conflict Minerals Ruling; Initiatives Proceed in the European Union and China

Recent developments in the U.S., European Union and China underscore the dynamic nature of evolving supply chain due diligence requirements and expectations for companies sourcing tin, tantalum, tungsten and gold. The following news alert highlights activities that may influence companies’ approaches to conflict minerals in the near term.

Court Finds Endangered Species Act Cannot Regulate Species on Private Lands Within a Single State

In a win for property owners and project proponents, a Utah federal district court has ruled that the United States Constitution does not authorize the U.S. Fish and Wildlife Service to regulate impacts to the Utah prairie dog as a listed “threatened” species living on private lands within a single state.

Firm News & Events

Jeanine Grachuk Elected Principal of the Firm 

Beveridge & Diamond is pleased to announce that Jeanine Grachuk has been elected Principal in the Wellesley office. Her practice includes environmental compliance counseling, environmental permitting of energy and brownfields redevelopment projects, and advice on managing environmental risk in complex transactions such as through environmental risk insurance.  Ms. Grachuk has experience with environmental issues arising within a variety of industrial sectors, including power generation, chemical production, and solid waste disposal. 

California Department of Transportation Assistant Chief Counsel David McCray Joins Beveridge & Diamond 

David McCray, who has served since 2007 as the senior environmental lawyer for of the California Department of Transportation (Caltrans), joined Beveridge & Diamond, P.C. as Of Counsel in the Firm’s San Francisco office on November 17, 2014. Mr. McCray joins the Firm’s active national project development practice, where he will assist clients with environmental reviews, permitting and approvals from a wide range of federal and state natural resources agencies, and litigation defense of project decisions and policies.

Beveridge & Diamond Again Named a Top National Environmental and Litigation Firm by U.S. News/Best Lawyers

U.S. News Media Group and Best Lawyers have once again awarded Beveridge & Diamond’s environmental and litigation practices a Tier 1 nationwide ranking in the 2015 Best Law Firms list.

Beveridge & Diamond Wins Preemption Decision in Washington State Court of Appeals

Appellate litigators in Beveridge & Diamond’s District of Columbia office, working with the Washington Department of Ecology, secured a unanimous decision from the Washington Court of Appeals striking down a county ban on land application of biosolids to farmland.

Beveridge & Diamond Secures Favorable CARB Determination in Offset Investigation for U.S.’s Largest GHG Offsets Provider

Attorneys in Beveridge & Diamond’s San Francisco office recently helped the largest developer of greenhouse gas (GHG) offset credits in the U.S., Environmental Credit Corp. (ECC), secure a favorable determination from the California Air Resources Board (CARB) with respect to its investigation of GHG offsets generated at the Clean Harbors facility in El Dorado, Arkansas.

Beveridge & Diamond Participates in High-Level Industry Dialogues in China Relating to China’s Recently Amended Environmental Protection Law

As far-reaching amendments to China’s environmental protection law become effective on January 1, 2015, Chinese investment in U.S. energy and industrial infrastructure continues, and China continues to be a major and growing market for multinational companies, Beveridge & Diamond principals Karl Bourdeau and Scott Fulton recently returned from their fourth mission this year to China.

Authors

Marc J. Goldstein

Principal

(781) 416-5715 mgoldstein@bdlaw.com

Jeanine L.G. Grachuk

Principal

(781) 416-5713 jgrachuk@bdlaw.com

Heidi P. Knight

Associate

(410) 230-1344
hknight@bdlaw.com

Brian C. Levey

Principal

(781) 416-5733 blevey@bdlaw.com

Stephen M. Richmond

Principal

(781) 416-5710 srichmond@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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