Massachusetts Environmental and

Land Use Alert

Massachusetts Environmental Developments

Off to Court We Go:  Petitioners Challenge EPA’s Small MS4 General Permit for Massachusetts

The storm of debate and criticism over the terms and conditions of the U.S. Environmental Protection Agency’s (EPA) General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (the Small MS4 General Permit or Permit) has shifted to the judicial arena.  In July, the first of several petitions for review of the final Small MS4 General Permit was filed in the D.C. Circuit Federal Court of Appeals, followed by four more challenges filed in the First Circuit Federal Court of Appeals.  Notwithstanding the initiation of litigation, Massachusetts municipalities should be continuing to develop their plans and organizing their resources to effectively implement the Small MS4 General Permit, which becomes effective in July 2017. 

EPA Issues Update to Settlement Penalty Policy for Industrial Stormwater Violations

Some violators of federal industrial stormwater requirements will likely pay significantly higher penalties under new guidance issued by U.S. EPA.  The new guidance, “Supplemental Guidance to the 1995 Interim Clean Water Act Settlement Penalty Policy for Violations of the Industrial Stormwater Requirements” (the 2016 Supplemental Guidance ), provides agency staff with guidance on how to calculate a minimum settlement penalty for unauthorized discharges of industrial stormwater, violations of EPA or state-issued NPDES industrial stormwater permits, and other violations of Clean Water Act stormwater requirements applicable to industrial activity.  The 2016 Supplemental Guidance sets forth a more sophisticated and detailed approach to calculating settlement penalties as compared to the 1995 Interim Policy.  While the effects of the new guidance are not entirely clear, it is likely that it will result in higher penalties for larger and more sophisticated companies compared to smaller companies for the same violations. 

Mass DEP Proposes Changes to Air Program

In August 2016, the Massachusetts Department of Environmental Protection (MassDEP) proposed several changes to its air regulations as part of its efforts to streamline regulations and reduce unnecessary regulatory burdens under Executive Order 562 .  These changes will affect a wide range of industrial and commercial facilities.

Breaking News:MassDEP Issues Vapor Intrusion Guidance

This week, MassDEP issued its long-awaited final “Vapor Intrusion Guidance:Site Assessment, Mitigation and Closure,” which is available here .This 126-page document, which is based on the October 2014 draft that received substantial public comment, provides guidance on how to assess, remediate, and close vapor intrusion sites under state cleanup regulations that were substantially revised in June 2014, as we described in a previous alert .Stay tuned:we will provide a full analysis in a future alert.


EPA Region 1 Continues its Crackdown on Urban Storm Sewer Systems

U.S. EPA Region 1 has slowly pursued enforcement cases against a large number of Massachusetts municipalities subject to stormwater permitting requirements of the small municipal separate storm sewer system program, known as MS4 systems, and the City of Haverhill is the latest target to settle. 

Governor Baker Signs Executive Order On Climate Change

Massachusetts has again stepped up its focus on climate change.  On September 16, 2016—as the summer of endless drought drew to a close—Massachusetts Governor Charlie Baker issued Executive Order No. 569 entitled “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  The Order addresses a range of actions related to climate change, including greenhouse gas (GHG) emissions reductions, climate change resiliency and adaptation, and planning and assessment of climate change risks.

Oh The Times . . . They are A-Changing:” EPA & DOJ Follow Through on Worker Endangerment Initiative

On October 12, 2016, the U.S. Department of Justice (DOJ) announced that four Texas companies agreed to plead guilty to criminal violations of the Clean Air Act at oil and chemical processing facilities, and to collectively pay $3.5 million in fines to the government.  While Clean Air Act criminal prosecutions are no longer rare events, and the total fines imposed set no new records, these cases are noteworthy for three critical reasons: 

  1. they confirm DOJ’s commitment to pursue the previously-announced Worker Endangerment Initiative;  
  2. they demonstrate the ability of OSHA and EPA to coordinate on significant enforcement cases; and 
  3. they reveal certain threshold factors that may trigger a criminal investigative response.


Massachusetts Land Use Developments 

Recent Changes to the Massachusetts Zoning Act and Smart Growth Zoning

Recently, the Massachusetts Legislature enacted and Gov. Baker signed into law several important changes to the Massachusetts Zoning Act, General Laws chapter 40A, and the Smart Growth Zoning and Housing Production Act, General Laws chapter 40R. 


Developments Affecting Academic Institutions

The Federal MS4 Permit:  What Massachusetts Academic Institutions Need to Know

In July 2017, the General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts, known as the MS4 Permit , will become effective in 260 towns and cities in Massachusetts.  The efforts by affected towns and cities to implement the permit, issued by U.S. EPA and MassDEP, will impact academic institutions, particularly those with development plans for the years ahead.  This is what academic institutions need to know about the MS4 Permit...

Practice Corner for EH&S at Academic Institutions: Raising the Stakes – EPA Increases Civil Penalties for Environmental Noncompliance

Colleges and universities could see huge increases in civil environmental penalties as a result of a recent update to the maximum civil penalties for federal environmental violations.


National Developments

EPA is Extending Its Refrigerant Management Regulations to Non-Ozone Depleting Refrigerants

The U.S. Environmental Protection Agency (EPA) has signed and is submitting for publication in the Federal Register an update to its Refrigerant Management Regulations under Section 608 of the Clean Air Act (CAA) to further reduce emissions of refrigerants from air conditioning and industrial refrigeration equipment.  An advance pre-publication copy of the rule has been posted on the agency’s website, here .  With this rule, EPA is revising the existing safe handling and management requirements that are currently applicable only to ozone-depleting substances (ODS) and extending them to substitute refrigerants, such as hydrofluorocarbons (HFCs).  The agency is also tightening certain provisions of the existing Refrigerant Management Regulations to include more stringent leak inspection and repair requirements and recordkeeping and reporting requirements.  The rule will become effective beginning in January 1, 2017, with staggered compliance deadlines for certain of the provisions newly applicable to substitute refrigerants.  EPA’s revised Refrigerant Management Regulations will not only impact owners and operators of refrigeration appliances and equipment and the technicians servicing such equipment, but will also impact  refrigerant distributors and wholesalers, refrigerant reclaimers, and appliance disposal facilities.  Each of these entities should begin to familiarize themselves with the updated regulatory requirements applicable to ODS and substitute refrigerants and begin preparing for their implementation early next year. 

Beveridge & Diamond Hosts TSCA Implementation Conference

On October 6, 2016, Beveridge & Diamond hosted a conference, TSCA Implementation: Opportunities and Challenges , at the CEB Waterview Conference Center in Rosslyn, Virginia.  The conference, which was attended by 40 industry leaders, featured six presentations by Beveridge & Diamond lawyers and panels of industry experts.  Discussion topics included key changes to TSCA and EPA’s expected implementation path; chemical industry perspectives on opportunities and risks under the new TSCA; preparing for compliance, enforcement, and litigation; TSCA impacts on product manufacturers and other downstream chemical users; and state chemical regulatory hotbeds, including California Prop 65 and green chemistry. 

DOT/PHMSA Proposes to Harmonize U.S. Lithium Battery Transport Requirements With International Standards

Summary:  The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration issued a proposed rule that would harmonize U.S. hazardous materials regulations with international hazardous materials transport standards.  Among other things, the proposal would change certain proper shipping names, hazard classes, packing groups, special provisions, packing authorizations, air transport quantity limitations, and vessel stowage requirements and incorporate by reference various international technical standards.  Significantly, PHMSA proposes to adopt into binding U.S regulation the updated hazard communication requirements for the transport of lithium batteries (including equipment containing such batteries) contained in the 19 th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods Model Regulations .  Once finalized, these requirements will be mandatory for all U.S. shippers and transporters of lithium batteries.  Although PHMSA has for the moment declined to incorporate into the U.S. Hazardous Materials Regulations the enhanced safety provisions for lithium batteries transported by aircraft contained in the 2015-2016 Edition of the International Civil Aviation Organization’s (“ICAO”) Technical Instructions as of April 1, 2016 , the preamble to the proposed rule indicates that the Agency is considering adopting these provisions in a separate rulemaking.  Comments on the proposed rule are due November 7, 2016. 

Comments Due November 1, 2016 on Proposed Update to Framework for Biotechnology Regulation

On September 18, 2016, the Obama Administration issued two major documents in connection with its ongoing efforts to modernize the federal Coordinated Framework for the Regulation of Biotechnology.  The  first document , a proposed update to the 1986 framework, intends to clarify the current roles of the U.S. Environmental Protection Agency (EPA), U.S. Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA) – the three primary agencies involved in the regulation of biotechnology products.  Members of the regulated industry, other stakeholders, and members of the broader public may submit comments on the proposed update until November 1, 2016.  The  second document presents a national strategy outlining future steps that the Agencies intend to take to ensure that the regulatory system addresses novel biotechnology product types going forward.  As directed by the Executive Office of the President last year, the Agencies have also commissioned development of a third document by the National Academies of Sciences, Engineering and Medicine (NAS) to address future biotechnology products and opportunities to enhance capabilities of the regulatory system.  The NAS expects to release its report at the end of 2016.

Firm News & Events

Super Lawyers Recognizes Four Wellesley Office Principals

Beveridge & Diamond, P.C. proudly announces that Super Lawyers recognized four principals in the Firm's Wellesley office as top lawyers in their fields of practice in Massachusetts.

The 2016 Massachusetts Super Lawyers list includes:

Super Lawyers is a rating service that identifies lawyers in more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers recognition is limited to no more than five percent of the lawyers in a given geographic area.

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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