Massachusetts Environmental and Land Use Alert

Massachusetts Environmental Developments

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.  

Boston Colleges Take Brownfields Tax Credit Fight to Court

Three Boston-area colleges sued the Massachusetts Department of Revenue 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.

Massachusetts Land Use Developments

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 that a seawall-walkway lies seaward of the historic high water mark based on a comparison of current conditions and historic maps.

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.

National Developments

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.

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.

Threatened and Endangered Species Listings Likely to Increase Under New FWS Policy

On July 1, 2014, the U.S. Fish and Wildlife Service and National Marine Fisheries Service published a “Notice of Final Policy” interpreting the phrase “significant portion of its range” in making listing decisions under the Endangered Species Act.

Supreme Court Holds That Industrial Sources Cannot Be Required to Obtain PSD or Title V Permits Based Solely on Their Greenhouse Gas Emissions

On June 23, the Supreme Court, in Utility Air Regulatory Group v. EPA, held that an industrial facility’s greenhouse gas emissions alone cannot be the basis for subjecting the source to the permitting requirements of the PSD and Title V provisions of the Clean Air Act, but if the source does a capital project that would be subject to regulation under these provisions for more conventional pollutants (e.g., particulate matter, NOx, SO2), permitting authorities may impose emissions limits on emissions of GHGs from those sources.

President Obama Signs the Water Resources Reform and Development Act into Law, the First Water Funding Legislation Since 2007

On June 10, President Obama signed into law the Water Resources Reform and Development Act, the first water funding legislation in seven years. In a rare showing of congressional bipartisanship, the WRRDA passed both the House (414-4) and the Senate (91-7) with nearly unanimous votes, sending a clear message that ports and coastal developments are key elements of our nation’s infrastructure.

White House Announcement Builds Momentum for Comprehensive Infrastructure NEPA and Permit Reform

With construction of the Tappan Zee Bridge replacement looming over his shoulder, President Obama announced an even greater commitment to reform the federal process for reviewing and permitting major infrastructure projects across the country.