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Showing 57 posts by Jeanine L.G. Grachuk.

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 ›

Academic Institutions: Do You Still Have a Single-Walled Steel Underground Storage Tank?

Massachusetts state regulations require that all single-walled USTs be removed or closed-in-place by August 7, 2017. Most tanks installed prior to 1970 (and in some cases later) were single-walled steel tanks.  Such tanks corrode over time and are likely to leak if left in place.  As a result, MassDEP is phasing out use of such tanks.  There are many types of replacement tanks including double-walled jacketed steel tanks and metal tanks with cathodic protection. Read More ›

MassDEP Issues Draft Fact Sheet Guidance on PFAS, a Class of Emerging Contaminants

On January 26, 2017, MassDEP announced that it had developed and is seeking comment on a Fact Sheet entitled “Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan.” The Fact Sheet is a primer on the class of contaminants known as PFAS including manufacture, toxicity, the types of sites where it may be found, sampling considerations, and analytical concerns.  The key takeaway from the Fact Sheet is that MassDEP is identifying PFAS as hazardous materials and expects investigation for PFAS at sites where it makes sense to do so and remediation of PFAS where it is found to pose a significant risk to human health or the environment.  MassDEP has requested comments by March 3, 2017. Read More ›

The Congressional Review Act: Congress Dusts Off an Old Oversight Weapon

One of the great powers that Congress has to undo changes made by a prior administration is the Congressional Review Act (CRA), which was enacted in 1996.  As of March 17, 2017, this Congress has used the CRA to overturn more agency rulemakings than any Congress before it.  Many more regulations are on the potential chopping block; a lot of them address environmental, energy, and natural resources issues.  With this whirlwind of activity under the CRA, it is vital for the regulated community to stay informed of congressional action in this realm. Read More ›

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.  Read More ›