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Showing 61 posts by Jeanine L.G. Grachuk.

Nonprofit Universities Eligibility for Brownfields Tax Credits, Massachusetts Appeals Court Confirms

Nonprofits are eligible for transferrable Brownfields tax credits for remediation conducted prior to 2006 according to a recent ruling by the Massachusetts Appeals Court. As we previously reported in March 2016, the Massachusetts Department of Revenue issued guidance in November 2013 declaring that nonprofit organizations are not entitled to receive credit for Brownfields cleanups completed in a taxable year that began before June 24, 2006. This guidance was challenged by several universities and a real estate developer, and in 2015, the Superior Court declared that the DOR overreached and the directive was invalid. DOR appealed. In its decision in Northeastern University v. Comm’r of Revenue, 92 Mass.App.Ct. 1120 (Mass.App.Ct. 2017), the Appeals Court affirmed the Superior Court’s decision based on the clear language of the statute. A motion for further appellate review has been filed with the top Massachusetts court. Read More ›

Standardizing Assessment of Natural Resource Damages: Massachusetts Is Taking the First Step

MassDEP is developing a standard methodology for assessing natural resource damages for small to medium oil spills to surface water that will be incorporated into forthcoming regulations, which will require persons responsible for these spills to pay the assessed natural resource damages, above and beyond cleaning up the spill.  MassDEP is expected to expand the standard assessment to include spills of hazardous materials and spills to groundwater.  MassDEP plans to pool these funds to improve watersheds that have been harmed by releases of oil or hazardous materials. Read More ›

For the First Time, EPA Proposes to Add a Site to the National Priorities List Solely Based on the Risk Posed by Vapor Intrusion

EPA has proposed to add the Rockwell International Wheel & Trim Site in Grenada, Mississippi to the National Priorities List, the first site added based solely on the risk to human health from vapor intrusion from subsurface contamination, which impacts indoor air quality. Read More ›

Academic Institutions: When Renovating, Where Do Your PCBs Go? EPA Region 1 Enforces Against University for Improper PCB Disposal

The University of Connecticut will pay $28,125 as part of a settlement with U.S. EPA resolving allegations that UConn improperly disposed of PCB-contaminated soils during a renovation project in 2013.  Academic institutions with buildings built or renovated in the 1950s, 60s, and 70s need to be particularly careful to use knowledgeable contractors and consultants as many building materials from that time period contain PCBs, the disposal of which is carefully regulated.  EPA claimed that UConn transported and disposed of soil contaminated with PCBs from window caulk to a facility not licensed to take the material under an incorrect manifest.   Read More ›

Massachusetts Permitting Goes Online

Finally catching up with many states that have made it possible to apply for and review permits online, Massachusetts’ Energy and Environmental Information Public Access System (EIPAS) went online last month, promising to usher in a new era of improved accessibility to the permitting process, while still exhibiting growing pains and limitations.  Read More ›

Playground Permanently Dedicated and Used As a Public Park Earns Massachusetts Constitutional Protections of Article 97

The Massachusetts Supreme Judicial Court has reinterpreted the test for determining whether municipal parklands are protected by article 97 of the Amendments to the Massachusetts Constitution. This decision means that more properties will now be restricted from development under the state constitution. Article 97 has historically been interpreted to restrict development only where the property had been taken or acquired for conservation purposes, or specifically designated for article 97 purposes by deed or other recorded restriction. In Smith v. City of Westfield, SJC–12243, 2017 WL 4358679 (Mass. October 2, 2017), the Court expands article 97 protection beyond those circumstances to apply whenever there is a “clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park. Read More ›

EPA Issues NPDES Remediation General Permit Renewal for Massachusetts

U.S. Environmental Protection Agency (EPA) renewed the NPDES General Permit for Remediation Activity Discharges in Massachusetts effective April 8, 2017.  This permit authorizes discharges from contaminated sites as well as a collection of miscellaneous discharges that may be contaminated.  A companion permit was issued covering these discharges in New Hampshire.  According to the US EPA Fact Sheet, discharges from about 750 remediation projects were authorized under the 2010 permits, mostly in Massachusetts.   Read More ›

Massachusetts Appeals Court Upholds Applicability of Wetlands Protection Act to Commercial Fishing Techniques Using Hydraulic Dredging Methods

The Massachusetts Appeals Court upheld the applicability of the state’s Wetlands Protection Act (WPA) to commercial fishing activities using hydraulic dredging methods on land under ocean and nearshore areas, clarifying municipal authority to impose additional requirements on activities in wetlands in relation to shell fishing.  However, in the same opinion, the Court concluded that a town bylaw prohibiting hydraulic dredging in nearshore areas without a permit is preempted by state law as applied to sea clam and quahog harvesting.  Read More ›

PHMSA Increases Penalty Limits for Pipeline Safety Violations

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) revised its regulations to increase the maximum civil penalties for violations of Federal pipeline safety laws, as well as any regulations or orders PHMSA issues thereunder, to adjust for inflation. Read More ›

Recent PFAS Case Law – RCRA, CERCLA and Toxic Tort Claims

A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country.  The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater.  At the same time, several cases are winding their way through the courts.  Below we discuss several recent cases involving PFAS contamination.  In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery. Read More ›