September 2011
15 Walnut Street, Suite 400
Wellesley, MA 02481-2133
(781) 416-5715
15 Walnut Street, Suite 400
Wellesley, MA 02481-2133
(781) 416-5733
15 Walnut Street, Suite 400
Wellesley, MA 02481-2133
(781) 416-5710


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Massachusetts Environmental Developments

Mass DEP Releases Air Permitting Guidance Documents

As part of its announced effort to streamline air permitting, the Massachusetts Department of Environmental Protection (Mass DEP) has released a number of helpful and substantive air permitting guidance documents for use by the regulated community in preparing permit applications for air emission sources.

Changes to MassDEP Audit Target under Chapter 21E

Under the Massachusetts notification and cleanup law for releases of oil or hazardous material, Chapter 21E, Licensed Site Professionals (LSPs) are empowered to make site assessment and cleanup decisions for most sites, subject to audit by the Massachusetts Department of Environmental Protection (Mass DEP). 

Comprehensive Review of Regional Greenhouse Gas Initiative To Be Conducted

The Regional Greenhouse Gas Initiative, the first mandatory cap-and-trade program to reduce greenhouse gas (GHG) emissions from fossil fuel-fired generators, aims to cap GHG emissions from the power sector and reduce those emissions by ten percent of baseline emissions by no later than 2018.

Massachusetts Land Use Developments

Municipality Cannot Require Variance for Extension of Residential Non-Conformity

Homeowners wishing to extend or expand their pre-existing non-conforming single- or two-family residential structures cannot be forced by a municipality to obtain anything other than a Special Permit under M.G.L. c. 40A, § 6, the Massachusetts Supreme Judicial Court ruled.

Declaratory Judgment May Be Used To Sort Out Which Decision Governs Proposed Wetland Work

While confirming that an administrative appeal to the Massachusetts Department of Environmental Protection is the correct vehicle for addressing the local Conservation Commission’s failure to issue a decision within the required 21-day period after closing the public hearing, the Massachusetts Appeals Court ruled that where ambiguity continues to exist after that appeal, an action for declaratory judgment is appropriate to resolve the dispute.

Substantial Reliance Saves Late-Recorded Variance

The Massachusetts Land Court has held that a variance is effective even if it is recorded outside the statutory one-year period so long as there has been substantial reliance on it.

Massachusetts Appeals Court Strikes Subdivision’s Mandatory Open Space Conveyance to Town

The Massachusetts Appeals Court has ruled that a subdivision approval condition requiring the dedication of open space for public use and actual conveyance of that open space to the town in exchange for certain waivers without just compensation violates the Subdivision Control Act

National Developments

U.S. EPA Issues Guidance on Enforcement Discretion for the “Affiliation” Criterion of the “Bona Fide Prospective Purchaser” Defense

On September 21, 2011, U.S. EPA issued guidance to its Regional Counsel regarding the “affiliation” criterion that owners must meet in order to be considered a “bona fide prospective purchasers” (BFPP) under CERCLA.

TSCA Developments in Congress and at EPA

Legislation to amend the Toxic Substances Control Act is still in play, despite the Congressional preoccupation with other issues.  EPA is making considerable progress in implementing its Enhanced Chemical Management Program under TSCA, despite roadblocks set up by the Office of Management and Budget.

California Releases Latest Versions of GHG Cap and Trade and Reporting Programs

The California Air Resources Board (CARB) has released the latest version of its greenhouse gas (“GHG”) cap and trade regulation: the “California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanism.”

Pharmaceuticals Stewardship Legislation Introduced in Congress

On September 15, 2011, Representative Slaughter (D, NY) introduced the Pharmaceutical Stewardship Act of 2011 (H.R. 2939), which would create a national, producer-funded pharmaceuticals take-back program.

Firm News & Events

Beveridge & Diamond Wins Reversal of Abstention Ruling in Ninth Circuit

Litigators from Beveridge & Diamond. P.C.’s Washington and San Francisco offices secured a unanimous decision from a Ninth Circuit panel reversing a District Court decision that Younger abstention required dismissal of a Commerce Clause challenge to a local voter initiative.

Beveridge & Diamond Named to National Law Journal’s 2011 Midsize Hotlist

The National Law Journal has named Beveridge & Diamond, P.C. to its “2011 Midsize Hotlist.”  The list, released on July 11, recognizes twenty law firms in the 50- to 150-lawyer range around the country that have “proven they can continue to thrive in this troubled economy.”  

Previous Issues of the Massachusetts Environmental and Land Use Alert

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