Massachusetts Environmental and

Land Use Alert

Massachusetts Environmental Developments

Supreme Judicial Court Orders the Massachusetts Department of Environmental Protection to Expand Greenhouse Gas Regulation

More greenhouse gas regulation is on the horizon as a result of the Massachusetts’ top court’s decision in Kain v. MassDEP . The Massachusetts Supreme Judicial Court ordered the Massachusetts Department of Environmental Protection (“MassDEP”) to expand its regulation of greenhouse gas (“GHG”) emissions in May and the full impact of this decision is unlikely to play out overnight.  The case has broad implications for MassDEP’s future interpretation and application of environmental laws in Massachusetts.

Massachusetts Moves To Assume Control of CWA Program as EPA issues Disputed MS4 Permit

Massachusetts’ status as one of only four states not in control of the Clean Water Act program within its boundaries may change as the state begins the process of applying to U.S. EPA for delegation of that program.  Delegation won’t happen quickly and not soon enough to provide relief to municipalities that must meet the requirements of EPA’s recently issued General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (known as MS4 systems). 

Gasoline with Lead is not Subject to the Petroleum Exemption in Massachusetts Clean-Up Statute Says Top Mass. Court

In a decision that has broad implications, gasoline with additives such as lead is not included in the exemption under the Massachusetts remediation statute, Chapter 21E, for oil releases located in certain drinking water areas according to the Supreme Judicial Court’s decision upholding an interpretation by the MassDEP.  

Governor Baker Approves First Major Overhaul of Massachusetts’ Public Records Law

Massachusetts has its first significant update of its Public Records Law since the 1970s with promises of swifter responses and real consequences including attorney’s fees for failures to comply.  

Comments Due August 15 on EPA Proposal to Remove Emergency Defense from Title V Operating Permit Regulations

On June 14, 2016, EPA  proposed  to remove the affirmative defense for emergency conditions from the Title V operating permit program regulations.  Comments on this proposed rule are due by August 15, 2016.

Massachusetts Attorney General Joins Multi-State Coalition Investigating Climate Change Disclosures 

Massachusetts State Attorney General Maura Healey has joined a coalition of attorneys general from 15 other states and the Virgin Islands—the “AGs United for Clean Power” coalition—who, according to Attorney General Healey, are “working as quickly and as aggressively as we can to fight climate change” by investigating the adequacy of public companies’ statements to their investors and the public about potential impacts of climate change on their businesses. 

Updates on the Site Cleanup Program in Massachusetts – TCE, Urban Fill and More 

Trichloroethylene

A new MassDEP Technical Support Document confirms that the agency has screened almost 1,000 closed TCE sites and anticipates that about 200 sites require follow up due to the potential for human health impacts due to vapor intrusion into the air of overlying buildings.  The document, entitled MassDEP Bureau of Waste Site Cleanup’s Plan for Evaluating Potential Imminent Hazards from Trichloroethylene (TCE) Vapor Intrusion at Closed Sites , confirms the ongoing efforts first reported in the last edition of this newsletter.   While MassDEP is prioritizing these sites and then contacting the landowners, MassDEP encourages potentially responsible parties to review site information to determine if action is warranted. 

Emerging Contaminants:  PFOA and PFOS 

On May 16, 2016, EPA issued final drinking water health advisories for PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate ) which set the acceptable life-time level for these chemicals in drinking water at 70 parts per trillion (0.07 ug/L), combined, “to offer a margin of protection against adverse health effects to the most sensitive populations.”  PFOA and PFOS are found in a variety of consumer products and have industrial applications.  These chemicals are stable, persistent and bioaccumulate in the food chain. 

Massachusetts Land Use Developments 

Massachusetts Appeals Court Imposes Higher Hurdle For Master Plan to Defeat 40B Project

In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing. 

National Developments

TSCA Reform Becomes Law; Now the Clock Starts to Tick on Implementation

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, H.R. 2576.  This historic legislation overhauls the Toxic Substances Control Act (TSCA) for the first time in 40 years.  It is the first major environmental law to be enacted in 25 years (since the Clean Air Act Amendments of 1990).  A legislative effort that began in earnest in 2009 has resulted, seven years later, in a strengthened statute that gives EPA new authority to prioritize, evaluate, and regulate chemicals as appropriate, and gives stakeholders an important role in that process.

State Air Agency Group Issues Model Clean Power Plan Rule

Summary: The National Association for Clean Air Agencies (“NACAA”) has released a model Clean Power Plan (“CPP”) rule as a resource for state air agencies.  The model rule highlights possible strategies for incorporating energy efficiency into state plans, and therefore provides valuable insight into the types of measures that companies can expect to face if the CPP moves forward.  

EPA’s Enforcement Focus on Refrigerants Continues With Another Multi-million Dollar Settlement

The U.S. Environmental Protection Agency (“EPA” or “Agency”) continues its enforcement focus on commercial refrigerant leaks from major retailers, keeping with the Agency’s goals of reducing leaks of ozone depleting substances (“ODS”) and greenhouse gas (“GHG”) emissions.  On June 21, 2016, Trader Joe’s Company entered into a proposed settlement with the U.S. Department of Justice and U.S. Environmental Protection Agency (“EPA”) to resolve claims that the company failed to comply with refrigerant leak repair and recordkeeping requirements in violation of Section 608 of the Clean Air Act and its implementing regulations.  United States v. Trader Joe’s Co. , N.D. Calif., No. 3:16-cv-03444 (June 21, 2016).  This represents the third settlement in three years brought against a major grocery chain for alleged violations of the commercial refrigerant regulations.  Under the terms of the settlement, Trader Joe’s agreed to spend approximately $2 million dollars over the next three years to reduce leakage of ODS and GHG emissions and to improve its corporate compliance program.  Trader Joe’s will also pay a civil penalty of $500,000.  We expect continued federal scrutiny and enforcement of companies’ compliance with the refrigerant regulations, including those currently being promulgated by EPA proposing to extend the requirements to non-ODS refrigerants that have high global warming potential (“GWP”), such as hydrofluorocarbons (“HFCs”). 

Maddie Kadas Outlines Trends in Latin American Environmental and Product Regulation and Enforcement for Latinvex

Latinvex recently interviewed Latin American practice chair Maddie Kadas for a special feature story on environmental and product regulatory developments in Latin America .  Earlier this year, Latinvex named Ms. Kadas for the third time as one of Latin America’s top 100 female lawyers, and also ranked Beveridge & Diamond as one of the top 50 international law firms in Latin America.  

Firm News & Events

Chambers Names Beveridge & Diamond U.S. Environmental Law Firm of the Year

On May 26, Chambers and Partners awarded Beveridge & Diamond the Chambers USA Award for Excellence in environmental law at its annual awards dinner in New York City. Each year, Chambers recognizes one law firm’s preeminence in environmental law based on the firm's outstanding work, impressive strategic growth and excellence in client service performed over the past 12 months. 

National Law Journal Again Names Beveridge & Diamond to Its "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.  2016 marks the fifth time that Beveridge & Diamond has been so honored, having previously been recognized in 2011, 2012, 2013, and 2015. 

Beveridge & Diamond Again Named a Top Tier Environmental Law Firm by The Legal 500

The Legal 500 again ranked Beveridge & Diamond as a top tier firm in the environment - transactional and regulatory category, and as a leading firm in the environmental litigation  category, in its 2016 edition of The Legal 500 United States. 

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

Principal

(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

Brook J. Detterman

Associate

(781) 416-5745 bdetterman@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 environmental issues 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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