Environmental Law Portal

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

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Boston Colleges Take Brownfields Tax Credit Fight to Court

Three Boston-area colleges sued the Massachusetts Department of Revenue (DOR) in August claiming that “clarifying” changes made to the Massachusetts Brownfields Tax Credit program retroactively changed the program and resulted in the denial of reportedly more than $17 million in such credits sought by the colleges.  Read More ›

Nonconformities Reconsidered: Massachusetts Court Reinterprets Zoning Act to Require Variances for New Nonconformities to Grandfathered Homes

In yet another twist in the law of residential non-conformities, the Massachusetts Appeals Court has held that there are some circumstances where municipalities may require a variance in order to alter a single- or two-family residence. In short, the Court has drawn a new bright line between work that intensifies an existing non-conformity on the one hand and changes that create new nonconformities on the other hand: In the former case, extensions or alterations may be authorized by the local board of appeals’ finding of “no substantial detriment” and/or grant of a special permit while in the latter case a variance is required.  Deadrick v. Zoning Board of Appeals of Chatham, Appeals Court No. 13-P-1264 (June 25, 2014).  This ruling resolves what “at first blush” appeared to be the holding in Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), that variances were impermissible in the case of residential alterations or extensions. (See Massachusetts Environmental and Land Use Alert dated September, 2011.)   Read More ›

Implementing the 2014 Changes to Massachusetts Cleanup Regulations

Significant changes to the Massachusetts cleanup regulations, known locally as the “MCP,” became effective June 20, 2014. As we described in our April 2014 alert, these changes substantially revised numeric standards and closure requirements and modified the assessment and remediation of sites with vapor intrusion, historic fill, and nonaqueous phase liquid. Since then, the Massachusetts Department of Environmental Protection (MassDEP) has been developing guidance materials to assist with implementation. These guidance documents touch on the most important changes in the regulations, and provide insight into anticipated implementation challenges: Read More ›

Location of a Structure, Without More, Is Insufficient to Prove the Historic High Water Mark

A Massachusetts Appeals Court affirmed a determination by the Commissioner of the Massachusetts Department of Environmental Protection (MassDEP) that a seawall-walkway lies seaward of the historic high water mark based on a comparison of current conditions and historic maps.  Wendy Stone-Ashe v. Department of Environmental Protection, 86 Mass. App. Ct. 16 (Mass. App. July 16, 2014).  Evidence purporting to show the position of an existing seawall, by itself, is insufficient to prove the historic high water mark.  Read More ›

OSHA’s Increased Enforcement of Facilities with Combustible Dusts Hazards

The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) continues to issue citations for alleged violations of various general industry standards (such as general housekeeping and electrical standards) and Section 5(a)(1) of the Occupational Safety and Health Act, the General Duty Clause (“GDC”), for alleged workplace exposure to fire and/or explosion hazards from “combustible dust,” despite the lack of a clear and comprehensive general industry standard governing employers’ handling of combustible dusts.  Read More ›

Wide-ranging Federal Plans to Address Chemical Process Safety and Security

Substantive changes may be coming to OSHA’s process safety management standard, EPA’s Risk Management Plan regulations, and DHS’s CFATS program. Companies affected by these and other programs regulating process safety and security should be aware of the developments and, as appropriate, consider participating in the rulemaking process. This alert reports on why and how multiple federal agencies are newly focused on updating and expanding their programs related to handling hazardous chemicals safely and securely.  Read More ›

Phthalates Panel Recommends Additional CPSC Restrictions

Over the next several months, the U.S. Consumer Product Safety Commission (CPSC) will be reviewing the report and recommendations of an agency advisory panel regarding risks of phthalates in children’s products. If implemented by CPSC through rulemaking, the recommendations of the long-delayed report would restrict phthalates more stringently.   Read More ›

DOT Proposes Rules for Rail Transport of Flammable Materials: New Standards for Classification, Tank Cars, Emergency Preparedness

Following recent events highlighting the potential devastating effects of accidents involving rail transportation of flammable liquids, the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) released a pre-publication copy of a Notice of Proposed Rulemaking (NPRM) on July 23 designed to improve the safety of transporting such materials. The proposed regulations come more than a year after the derailment and explosion of a train carrying 72 tank cars, each filled with 30,000 gallons of Bakken crude oil in Lac-Mégantic, Quebec, that killed 47 people. PHMSA will accept comments on the proposed rules until September 30, 2014 79 FR 45015 (Aug. 1, 2014).  Given the extensive comments received on the Advanced Notice of Proposed Rule Making (ANPRM), the agency has indicated it does not intend to extend the comment period.   Read More ›

What’s New Under the Food Safety Modernization Act?

The FDA Food Safety Modernization Act (FSMA), enacted in 2011, shifted the focus of the Food and Drug Administration (FDA) from responding to food contamination incidents to preventing contamination from occurring.[1] FSMA amends the Federal Food, Drug, and Cosmetic Act (FFDCA) as it applies to the food supply, and provides FDA with new authority to regulate food. This alert outlines the major provisions of FSMA applicable to industry and FDA’s efforts to implement these provisions. Read More ›

EPA Issues Preliminary Guidance on Its Interpretation and Implementation of UARG v. EPA

In a memo sent to Regional Administrators on July 24 (“Memo”), EPA’s Offices of Air and Radiation and Enforcement and Compliance Assurance provided a first look at how the Agency is interpreting its PSD and Title V permitting authority following the Supreme Court’s recent decision in Utility Air Regulatory Group v. EPA. Many questions remain unanswered, but the Agency did provide its guidance on the following:

  1. EPA confirmed that it will no longer require sources to apply for PSD and Title V permits on the basis of greenhouse gas (“GHG”) emissions alone (so-called “non-anyway” or “Step 2” sources);
  2. EPA re-established 75,000 tons per year (“tpy”) as the threshold for triggering BACT requirements for GHG emissions from sources that trigger PSD requirements on the basis of emissions of conventional pollutants (so-called “anyway” sources); and
  3. EPA set forth its view that state permitting authorities may continue to require non-anyway sources to obtain PSD and Title V permits if there is independent state authority to do so. 
Read More ›