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Showing 57 posts by Marc J. Goldstein.

SJC Clarifies Statute of Limitations for Contaminated Property Damage Claims but Raises Questions of Application

Plaintiffs with property damage claims under the Massachusetts cleanup law have more time to bring their claim than might be expected under the three-year statute of limitations according to a recent ruling by the top Massachusetts court.  The Supreme Judicial Court ruled that the statute of limitations begins running when the plaintiff knows that there is damage to the property that is “permanent” and who is responsible for the damage, pointing to the phases of investigation and remediation in Massachusetts’ regulatory scheme as signposts for when a plaintiff should have that knowledge.  Grand Manor Condominium Assoc. v. City of Lowell, 478 Mass. 682 (2018).  However, the Court left considerable uncertainty about when the statute of limitations might begin for arguably more temporary property damages such as lost rent. Read More ›

Westport’s Novel Claims for PCB Remediation Costs End at First Circuit

The Town of Westport cannot recover clean-up costs from manufacturers of PCBs used in caulk at the town’s middle school under a variety of common law and statutory theories, according to a ruling by the First Circuit in Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017).  The decision ends a pair of novel cases brought by Massachusetts towns looking to the PCB manufacturers to pay for remediation at school sites. Read More ›

Superior Court Decision Raises the Bar For Municipalities Seeking to Challenge Special Permits And Other Zoning Actions Taken By Neighboring Municipalities

The Massachusetts Superior Court has ruled that a municipality lacks standing to challenge a special permit issued by a neighboring town when the alleged harm is “too speculative and remote to qualify them as ‘aggrieved parties’ with standing to pursue an appeal under M.G.L. c. 40A, § 17.”  The case, Town of Chelmsford et al. v. Newport Materials, LLC, et al. (Case No. 1681CV03455) was brought by Chelmsford to challenge a special permit issued by the Westford Planning Board to construct an asphalt manufacturing plant in Westford on the border of the two towns.  Chelmsford argued that because the towns had entered a “mutual aid agreement” under which Chelmsford firefighters could be called to fight a fire at the asphalt plant in Westford, it had standing to challenge the permit as a “person aggrieved” under M.G.L. c. 40A, §17.  In an opinion issued in early September, the Superior Court disagreed, ruling that Chelmsford lacked standing to pursue its claims. Read More ›

Top Massachusetts Court clarifies 9/11-era Public Records Exemption

The Massachusetts Supreme Judicial Court ruled that the public records exemption passed after the September 11, 2001 terrorist attacks protecting critical infrastructure documents from disclosure is to be interpreted narrowly, sending a public records case brought by People for the Ethical Treatment of Animals (PETA) back to the trial court for further proceedings.  Read More ›

Landfill Expansion Project Halted by MassDEP

Company Settles MassDEP enforcement case, Reaches Agreement with MassDEP to split $10 Million Cost to Construct Drinking Water Line and Receives Notice of Intent to Sue from Environmental Groups

A proposal to expand the Southbridge, Massachusetts landfill owned by the Town of Southbridge and operated by a subsidiary of Casella Waste Systems has been halted by MassDEP in the face of concerns about the source of contaminants, primarily 1,4 dioxane, found in area groundwater. Shortly thereafter, MassDEP announced a $5 million grant towards the cost of extending a drinking water supply line to area residents, contingent upon agreement from Casella to provide matching funds. In addition, MassDEP announced the settlement of an administrative penalty case against Casella alleging past landfill operational violations, and two state environmental groups sent Casella a notice of intent to sue, claiming the company was responsible for surface water and groundwater contamination in the vicinity of the landfill. Read More ›

Corps of Engineers Nationwide Permits – Some New, Some Modified – Take Effect

On March 19, 2017, the latest iterations of the U.S. Army Corps of Engineers’ nationwide permits (NWPs) will take effect.  As set forth in the Corps’ final rule announcing these NWPs, the 2017 package contains 52 permits, many of which are being reissued from the permits currently in place, along with General Conditions, Definitions, and decision-making directions for Corps district engineers.  The NWP Program is a streamlined permitting process that authorizes certain categories of activities that have minimal individual and cumulative impact to wetlands and other waters of the United States subject to a pre-determined set of General Conditions.  Any parties that operate under such NWPs should review the modifications to determine whether their future permitting options might be affected, and seek legal counsel as needed.  The new set of NWPs will be valid for five years, expiring on March 18, 2022. Read More ›

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.  Read More ›

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).  Read More ›

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.  Read More ›

Net Metering 2.0: Big Changes Across New England

Summary: April is turning into a busy month for solar energy policy in New England: Massachusetts and New Hampshire recently enacted new net metering legislation, while lawmakers in Maine debate a novel proposal that would revamp the way solar owners are compensated for the power they produce and Vermont regulators recently proposed an overhaul of that state’s net metering program.  Read More ›