Massachusetts Environmental Developments

Still Unsettled: MassDEP issues Interim-Final Guidance on
Vapor Intrusion at Contaminated Sites

For several years, the Massachusetts Department of Environmental
Protection (MassDEP) has been working toward developing updated,
comprehensive guidance for addressing sites with vapor intrusion issues.

Solid Waste Regulatory Reforms in Process at MassDEP

As previously reported, the Massachusetts Department of Environmental
Protection (MassDEP) is busily studying regulatory reform options to
streamline its operations in order to respond to fairly significant budget
reductions.

MassDEP Issues Revised AAL/TEL Guidance for Regulating
Air Emissions

The Office of Research and Standards, the risk assessment office within
the Massachusetts Department of Environmental Protection, has issued a
revised comprehensive guidance that sets numerical allowable ambient
limits AALs) and threshold effects exposure limits (TELs) for a wide array
of air pollutants. 

Information and Nominations Sought with respect to
Commercial Wind Leasing and Site Assessment Activities
on the Atlantic Outer Continental Shelf Offshore of
Massachusetts

On February 6, 2012, the federal Bureau of Ocean Energy Management
issued a Notice of Intent to prepare an Environmental Assessment as part
of the Department of Interior’s “Smart from the Start” wind energy initiative
for the Atlantic Outer Continental Shelf offshore of Massachusetts. 

Massachusetts Land Use Developments

Massachusetts Land Court Dockets Finally Available Online

The Massachusetts Land Court has joined most other Massachusetts state
courts in finally offering access to its dockets online.  The service is fully
searchable by name of party, docket number, and other criteria and requires
no login or password.

Top Massachusetts Court Reverses Local Board’s Decision
Denying Special Permit

The expansion of a mobile home park in Shirley, Massachusetts, prompted
an unusual reversal of a local board’s decision on a Special Permit by the
Massachusetts Supreme Judicial Court.

Deadline for Appeals of Local Wetland Decisions to Court
Sometimes Difficult to Judge

In a continuing reminder of the difficulties of determining when the 60-day
period starts for filing an appeal of a decision under local wetland bylaws
to court, the Massachusetts Appeals Court dismissed an appeal for being
untimely. 

National Developments

U.S. District Court Vacates EPA’s Delay of the Effectiveness
of the Boiler MACT

A U.S. District Court has overturned an attempt by the U.S. Environmental
Protection Agency (EPA) to delay the implementation of the Boiler MACT,
one of the most wide-reaching air rules that EPA has crafted under the toxic
air pollutant program, 40 CFR Part 63, Subpart DDDDD.

Congress Limits DOT Authority over the Transport of Lithium Batteries

On February 6, 2012, Congress passed legislation, which is expected to be
signed soon by President Obama, to prohibit the United States Department
of Transportation from issuing or enforcing any regulation regarding the
transport of lithium batteries by aircraft that is more stringent than the
requirements of the Technical Instructions for the Safe Transport of Dangerous
Goods by Air issued by the International Civil Aviation Organization.

Federal District Court Grants Preliminary Injunction in Challenge to City of Dallas Flow Control Ordinance

The U.S. District Court for the Northern District of Texas has issued a
preliminary injunction enjoining the City of Dallas from implementing the
City’s flow control ordinance, which the City enacted in September 2011. 

EIP and CCAN Drop NPDES Ash Transport Water Permit Appeal

Both the Environmental Integrity Project (EIP) and the Chesapeake Climate
Action Network (CCAN) have voluntarily dismissed an appeal pending before
the Maryland Court of Special Appeals, challenging Maryland’s application of
the United States Environmental Protection Agency’s (EPA) Steam Electric
standards established for ash transport water. 

District Court Rules in FOIA Action That Communications
Between DOJ Attorneys Representing Agencies With Adverse Interests In Superfund Action Are Not Privileged

A January 25, 2012 ruling in Menasha Corporation v. United States Department of Justice, a Freedom of Information Act (“FOIA”) action in the Eastern District of Wisconsin, has significant implications for the government’s ability to claim deliberative process privilege for interagency communications in response to FOIA requests and for the scope of privilege protections available to the government in Superfund actions. 

Firm News & Events

Defense Research Institute Reports on Beveridge & Diamond
Trial Win

DRI, the leading organization for defense lawyers, reports in its latest issue
of its online magazine The Voice on the Firm’s recent trial win for DC Water
in Cormier v. D.C. Water and Sewer Authority, 2011 D.C. Super. Lexis 7, 139 DWLR 2157 (D.C. Super. Ct. Sept. 30, 2011). 

Beveridge & Diamond Leads Successful Defense of Power Plant Permit in Case of First Impression in Texas

Beveridge & Diamond’s Texas office secured a ruling from a Texas state
district court denying novel claims that a wastewater permit for a Texas
power plant was issued by the Texas Commission on Environmental Quality
in violation of the plaintiffs’ due process rights. 

Previous Issues of the Massachusetts Environmental and
Land Use Alert