As landfill space dwindles in Massachusetts, New Hampshire has become the state’s dumping ground
By David Abel Globe Staff, Updated July 19, 2021, 5:10 p.m.
DALTON, N.H. — In the rolling hills along the northwestern edge of the White Mountains, beside a nearly century-old state park and a serene lake where neighbors fish and swim, a waste management company plans to build New England’s first new landfill in decades.
The proposed Granite State Landfill, which has sparked protests across the North Country of New Hampshire, would bring more than 100 heavy trucks rumbling every day through small towns to dump nearly a half-million tons of trash a year on 137 acres of forested wetlands.
Much of that refuse would likely come from out of state, a growing burden that has peeved many in New Hampshire, where nearly half of all trash dumped here is hauled in from surrounding states — mostly from Massachusetts.
“We don’t want to be the dumping ground for the rest of New England,” said Wayne Morrison, whose homes abuts Forest Lake, a recreational draw stocked with smallmouth bass and pike less than 3,000 feet from the proposed dump. “It’s totally obscene to put a landfill here; this is the worst possible place.”
As landfills close after reaching capacity and zoning rules make it difficult to expand existing dumps or open new ones, officials at the company behind the Dalton landfill, Casella Waste Systems, contend the region needs more places to unload trash.
They cite a 2019 state report that estimated New Hampshire could have a shortfall of 120,000 tons in annual disposal capacity by 2025, and 10 times that by 2034, assuming the closure of several existing landfills and no significant reduction in the waste stream.
“New Hampshire is looking at serious capacity constraints over the next two decades,” said Joseph Fusco, vice president of Casella, a Vermont-based waste management company that has nearly $800 million in annual revenue and operates nine landfills and 20 recycling facilities in the Northeast. “There are constraints elsewhere in the region, and those constraints will become New Hampshire’s problem as well. We’re addressing a public policy problem.”
Casella has an agreement with the owner of a sand and gravel company to buy the Dalton land, which is close to two interstate highways. Fusco said the geology of the land also makes it ideal for a landfill.
“This is a prime location,” Fusco said. “This is the site that makes the most sense.”
It’s also easier to put landfills in New Hampshire than other states. Fusco and others at Casella say state law limits the ability of local officials to reject a landfill and requires they defer to state regulators.
But officials in New Hampshire and Massachusetts say it’s unclear whether new landfills are necessary.
Between 2015 and 2019, New Hampshire received an average of 2.2 million tons of trash a year, 47 percent of it from elsewhere in New England, according to the state Department of Environmental Services. In 2019, 86 percent of imported garbage came from Massachusetts.
Because of interstate commerce laws, New Hampshire can’t ban out-of-state trash. But it can impose regulations that could significantly limit imports, as some states do. Vermont, for example, requires municipalities that send trash to a landfill there to submit a solid waste master plan, which few from outside the state do.
With most of New Hampshire’s six landfills seeking permission to expand, officials said they’re unsure if the state needs another dump, especially given that its population of about 1.4 million is not growing by much.
“We have adequate capacity for the next several years, but it’s hard to answer whether there’s enough space over the next 20 years,” said Mike Wimsatt, director of the waste management division of the Department of Environmental Services. “If there’s a deficit, we’d conclude there’s a need for capacity.”
The amount of imported trash is not included in that calculation, and changes to how the state regulates such imports would have to be approved by the Republican-controlled Legislature, Wimsatt said.
Under pressure from deep-pocketed waste companies such as Casella, which hopes the new facility will make up for lost revenue after its sprawling dump in nearby Bethlehem closes this decade, the Legislature has been loath to make such changes. In May, lawmakers rejected a bill that would have banned landfills within two miles of state parks, a measure aimed squarely at Casella’s proposal.
Casella opposed the legislation, because it was unnecessary, Fusco said.
Earlier this year, the Legislature required state officials to complete a new solid waste master plan by next year, for the first time since 2003.
In Massachusetts, where landfill space is quickly growing scarce, waste companies have increasingly looked north.
Of more than 5.5 million tons of refuse that Massachusetts produced in 2019, the most recent year for which data was available, the state exported nearly 2 million tons; that’s 55 percent more than in 2010.
Without significant changes, those exports are projected to rise sharply. All but one of the state’s seven landfills are projected to close by 2030, and total capacity in Massachusetts is expected to decline to just 60,000 tons, 90 percent below current levels.
Environmental advocates have long argued that state officials, aggressively lobbied by waste management companies that can charge as much as $100 a ton for disposal in New England, have done too little to limit the waste stream.
“The waste companies want us to think they’re the only way to go,” said Kirstie Pecci, director of the Zero Waste Project at the Boston-based Conservation Law Foundation. “That’s not even close to being true.”
She and other environmental advocates oppose the proposed landfill in Dalton, which they say would encourage greater imports of garbage and impede broader efforts to reduce trash.
Most of the waste in Massachusetts, Pecci said, is needlessly buried or burned: Some 2.2 million tons of material such as cardboard and paper could be recycled, another 1.5 million tons of food and yard waste could be composted, while tons more of toxic materials, such as batteries, are sent to landfills illegally.
She and others have encouraged state lawmakers throughout New England to pass bills that would promote recycling, such as expanding the state’s bottle-deposit law, and require companies to cover the costs of their products’ disposal, such as a recently passed bill in Maine.
“There’s an overall injustice of cities and towns paying for this pollution,” she said. “It’s not an accident we’re not seeing proposals for new landfills in affluent towns in Massachusetts.”
In Dalton, where Casella has promised to pay the town $71 million over 25 years if officials support the landfill, the proposal has divided its 900 residents.
Last month, Town Meeting members approved by just five votes an extension of a temporary emergency zoning rule that gives Dalton officials the option of trying to stop the project. Officials in neighboring towns have also urged the state to reject the proposal, raising concerns about everything from traffic to the environment.
Casella officials have suggested they could proceed without local approval, citing a New Hampshire Supreme Court decision they said allows state officials the final say on where a landfill can be built.
Along Forest Lake, where nearly every resident’s yard has a “No Landfill” sign, Eliot Wessler said he understood why so much money from Casella might be tempting, especially when it could eliminate property taxes for years to come.
But he and other opponents pointed to potential environmental dangers, noting a recent leak of about 150,000 gallons of leachate — landfill runoff that’s often contaminated with heavy metals and other toxic chemicals — at Casella’s dump in Bethlehem.
“This is an extremely environmentally sensitive area, with a lot of potential contamination of water supplies,” he said. “This is a godawful location to put a landfill.”
From The Boston Globe
Ruth Silman, a ‘multi-dimensional’ lawyer, mother, and friend, dies at 52
By Bryan Marquard Globe Staff
Updated July 12, 2021, 7:24 p.m.
No stranger to ascending heights, Ruth Silman hiked to the top of all 46 high peaks in the Adirondack Mountains before turning 46.
Reaching a different kind of summit brought her renown within Boston’s legal community, though, when five years ago she became the first woman named managing partner of Nixon Peabody’s Boston office. As an attorney focusing on environmental issues, simply landing a job at the firm in 2000 had expanded her horizons.
“All of a sudden I had this national reach,” she said in 2017. “I had the opportunity to work on cases from New England to California. There were so many clean-air cases to work on, I felt like a kid in a candy store.”
Ms. Silman, who became a board member of a nonprofit that lends assistance to cancer patients long before her own cancer diagnosis, died June 30 in her Harvard home. She was 52.
“She was multi-dimensional in a way that allowed her to shine in so many different ways,” said her friend and colleague Sarah Connolly, a Nixon Peabody partner.
“Ruth wasn’t just a lawyer and a mom. She was an amazing lawyer, a wonderful mom,” Connolly added. “She was an outdoors enthusiast and was committed to her causes, to her friends. The list goes on and on and on.”
It may have come as a surprise to some in the legal community that the attorney part of that list was initially somewhat tentative. Ms. Silman said in the 2017 interview with the Boston Bar Association that she hadn’t planned to practice law when, drawn by the intellectual challenge, she attended the Boston University School of Law.
Then during a class in her first semester, a professor “started talking about a toxic tort case that he was working on, and honestly, my entire career path became clear. I thought: I could do that for a living. I could investigate. I could figure out the law and the policy. I could help people. I could clean up the environment. Being an attorney was an opportunity to do all of that.”
After graduating in 1994, she spent a year in the environmental protection division of the state attorney general’s office, then 4½ years with the Boston firm Anderson & Kreiger before Nixon Peabody hired her.
“Ruth was amazing. It’s actually hard for me to put that in the past tense,” said her friend Paul Bouton, who also is a partner at Nixon Peabody. “She knew the law and she knew the business, but it was her ability to really make a meaningful connection with people that made her very, very effective.”
Bouton said the two worked together on thousands of affordable-housing units that were “either being preserved or being built,” and he recalled that she participated in a Zoom call about a month ago for a proposed development in Cambridge.
Even though her health was failing, “she felt like, ‘Dammit, I’m going to help this client get this one approved,’ ” he said.
On a personal level, “I knew she was somebody who was a real friend — if I needed to talk about something, she was always there,” Bouton said. “And plus, by the way, she was a blast to be around. She was someone who you’d cherish the time you had with her.”
Born in 1968 in White Plains, N.Y., Ruth Hilary Silman was the youngest of three children and grew up in Ardsley, N.Y., and Great Barrington.
Her mother is Roberta Karpel Silman, a writer. Her father was Robert Silman, a well-known structural engineer whose projects included preserving the Survivors’ Staircase from the World Trade Center and conceiving of a way to prevent Frank Lloyd Wright’s Fallingwater house in Pennsylvania from collapsing.
In her childhood and teen years, Ms. Silman was known for keeping up with older family members on long hikes, honing her musical gifts as a violinist, and developing culinary talents as a baker.
At the North Country Camps in the Adirondacks, she reveled in a love of nature and met Tim Clark, her future husband, when they were children.
Their friendship started slowly. “She had a thing for my best friend,” he said. “She had no interest in me at the time.” Neither did they exactly race into anything after reconnecting later. “We dated for about eight years before we got married,” he said, adding that “we were pretty well committed fairly early on.”
Ms. Silman was a government major at Cornell University, from which she graduated with a bachelor’s degree in 1990. She spent a year skiing in Steamboat Springs, Colo., before law school.
As an attorney, “she saw the law, and in particular zoning, and in particular Boston zoning, as a puzzle, as something to be understood and mastered,” said Clark, who has served as a Harvard selectman.
At Nixon Peabody, along with handling initiatives such as the redevelopment of Boston’s Old Colony housing project, Ms. Silman faced a formidable task upon becoming managing partner when the firm upgraded and expanded its offices.
Those at the firm refer to the 53 State St. offices “as the house that Ruth built,” Bouton said. “That space is spectacular, and it’s almost entirely because of Ruth.”
Although her professional achievements were numerous, Ms. Silman also spent countless hours with her family, raising her children, Phoebe and Jacob, with her husband.
A few nights before Ms. Silman died, she “told me that Phoebe and I have been her greatest achievements,” Jacob said in a reflection during his mother’s memorial service.
“Mom taught me patience, she taught me kindness,” he said, adding that “I’ve smiled more than I’ve cried since she’s passed, and yeah, everything reminds me of her, but that’s okay. I see her smile everywhere.”
In addition to her husband and children, all of Harvard, Ms. Silman leaves her mother, of Great Barrington, and her siblings, Joshua of Fairfax, Vt., and Miriam of Lexington, Ky.
A celebration of Ms. Silman’s life and work will be announced.
“I think the thing that was so inspiring about Ruth is that she was engaged in a lot of things, and there was a through line of the environment and the natural world and making the world a better place,” Miriam said.
Among the ways Ms. Silman did that was serving on the board of the Virginia Thurston Healing Garden Cancer Support Center in Harvard for about 17 years, beginning more than a decade before the first of the two cancer diagnoses.
“She was a bright light and full of energy and had such a positive outlook,” said Meg Koch, who served with Ms. Silman on the board before becoming the center’s executive director.
“Ruth always was methodical in her analysis of a problem. She was able to see through the weeds to what was really important,” Koch said, adding that when Ms. Silman offered her opinion to the center’s leaders, “She did that with grace, she did it with diplomacy, and she was always right in how she advised us. And she was fun and funny and fashionable.”
Earlier this year, Ms. Silman was interviewed for a video about how cancer patients were faring during the pandemic. Ever the lawyer, her observations were as pragmatic as they were peaceful.
“Today’s a good day. I was able to go cross-country skiing for a short time,” she said.
“I’m alive. I can breathe,” she added, “so today is good.”
From the Hampshire Gazette
Hadley Select Board axes conservation chairwoman in permit spat
Published: 7/8/2021 4:50:12 PM
HADLEY — Citing complaints about onerous oversight of wetlands rules by the Conservation Commission, and suggesting commissioners are not playing on “Team Hadley,” the Select Board chose Wednesday not to reappoint its chairwoman.
Even with resignation threats from remaining members of the commission and the lone conservation staff member if the Select Board cut membership, the board voted 4-1 to reduce the commission from seven to six members and remove its chairwoman, Paulette Kuzdeba. Select Board members Jane Nevinsmith cast the dissenting vote.
“It seems the Conservation Commission is just not helping the public to help move everything through smoothly, to give them their permits and to get their jobs done,” Select Board member John Waskiewicz said.
Waskiewicz came up with the idea of trimming the commission, making it more streamlined, after receiving more than two dozen complaints about the commission’s work.
“All the complaints I’ve gotten, most of them from farmers in town, is that it’s a customer-service issue,” Select Board Chairman David J. Fill said.
Board member Amy Parsons said that the complaints include that members of the commission are unwilling to assist their fellow residents.
“When we’re here, we’re Team Hadley, that is who we are, that is what we are. I don’t care about your political affiliation, I don’t care about anything else,” Parsons said. “I’m Team Hadley, and I’m here for the town.”
Board member Joyce Chunglo said she has no problem with the knowledge and background of those serving, but the Conservation Commission is not getting residents through permitting easily.
“What I have found, and what I am disturbed about, our citizens of Hadley, when they have gone to the (Conservation Commission), have not had good relations with them in guiding them through the processes they have had,” Chunglo said.
Kuzdeba, though, defended the commission, especially with a growing caseload as it has been charged with regulating campers and docks along the Connecticut River.
“We are very helpful to people in working with them,” said Kuzdeba, a member of the commission since 2006.
She said commission members are dedicated team players working long hours, and just four permits have been denied since 1973. Kuzdeba added that removing her without just cause could be a violation of federal and civil rights and interference with her legal duties under the Massachusetts Wetlands Act and the town wetlands bylaw.
Prior to the meeting, Kuzdeba said she was being made a scapegoat by one property owner upset about his riverside site being limited to two campers. She said she had no opportunity to respond to him or even know what the other complaints are.
“This is their way of getting rid of me, plain and simple,” she said. “They’ve never contacted me about reducing the number of members.”
Two Conservation Commission members, Toni Lyn Morelli and Jim Hafner, submitted their resignations in protest Thursday.
Morelli said she was “flabbergasted” at the Select Board’s action and described the loss of Kuzdeba as devastating.
“At the very least this feels like a very bad process,” Morelli said, adding that the commission never turns down anyone’s project, but does promote protection of plants and wildlife, air and water, especially on the Connecticut River.
“It has a chilling effect that dedicated and knowledgeable volunteers appear to face sanction and have the Select Board sort of question their integrity and intent,” Hafner said.
The departures could possibly hold up projects that the commission has begun reviewing, including the state Department of Transportation’s widening of Route 9,
Though a decision was made, Kuzdeba said, “My attitude is I’ve already been reappointed.”
In fact, her reappointment was part of a consent agenda adopted by the board at its June 23 meeting, even though Fill told her otherwise in a text message that night, arguing that her name and that of member Stephen Szymkowicz had been withheld.
“I believe Mr. Fill exceeded his authority stating such and acting unilaterally on behalf of the Select Board without their input on the matter, thus violating his sworn duty to the Select Board and the town,” Kuzdeba said.
She also alleged that board members may have talked about the decision on reducing the size of the commission outside the meeting, a violation of the Open Meeting Law.
In May, a former member of the town’s Select Board alleged the current board violated the state’s Open Meeting Law when it adopted a new policy related to COVID-19 vaccinations and access to municipal buildings.
Mark Dunn, an elected member of the Planning Board, said the Conservation Commission plays a vital role in maintaining, conserving and protecting the environment.
“They’ve got the long view, and I don’t think we should cut them off at the knees,” Dunn said.
Planning Board Clerk William Dwyer said the commission’s expertise is an essential part of the town’s volunteer government.
“I am concerned you are trying to redesign the town’s land permitting use system on the fly,” Dwyer said. A consequence could be the need to hire a conservation director at significant expense to the town, he said.
Conservation staff member Janice Stone, hired by former commission chairwoman Alexandra Dawson in 2005, called the decision to dismantle the commission “a malicious attack on a great conservation chair.”
“She is not afraid to stand up for what she believes in and she knows the wetlands regulations,” Stone said. “She is irreplaceable.”
Andy Morris-Friedman, who lost his position on the Community Preservation Act Committee a year ago, said Hadley should move to have more officials elected to avoid the “capricious whim” of Select Board appointments.
“All you have to do is disagree with the Select Board and they don’t reappoint you,” Morris-Friedman said. “Believe me, I know.”
Scott Merzbach can be reached at firstname.lastname@example.org.
- Gloucester Daily Times, June 2, 2021
BOSTON — A new state panel is looking at ways to detect and remove so-called “forever chemicals” from drinking water.
On Tuesday, members of the PFAS Interagency Task Force met virtually for the first time to look at contamination from per- and polyfluoroalkyl substances, or PFAS, in water systems and come up with a plan to help cities and towns test for and treat the problem.
The chemicals, used to make products from frying pans to firefighting foam, have been detected in the water at increasing levels.
Rep. Sally Kerans, D-Danvers, a member of the task force, said she has become more “alarmed” by evidence of the chemicals contaminating drinking water. She said the panel needs to “figure out the roadmap” to deal with the problem.
“It just doesn’t get any more basic for me than clean, safe drinking water,” Kerans said during the hearing. “It’s a fundamental obligation of government.”
Martin Suuberg, commissioner of the Massachusetts Department of Environmental Protection, told the panel that at least 600 water systems have been tested to date and a majority have not exceeded the state’s standard for PFAS contamination.
“Thankfully a lot of systems have come back with no issues,” Suuberg told the panel.
He said the agency is working with at least 23 communities that reported excessive PFAS levels to reduce the contamination.
Last year, Gov. Charlie Baker’s administration set requirements for public water systems to test for so-called PFAS and remove the contamination if concentrations of six specific chemicals are found above 20 parts per trillion.
Under the rules, polluters must clean soil and groundwater at contaminated sites if PFAS levels are above the new standards.
Locally, Danvers was among the communities that showed elevated levels of the chemicals, MassDEP says, but town officials have pointed out that the tests were from two wells, taken several years ago, and there has been no contamination of the town’s water treatment plant.
Meanwhile, MassDEP has conducted tests for PFAS in nearly 1,500 private drinking water wells in 63 communities at the behest of local officials.
Of those tests, 95% were negative for the chemicals. But wells in several communities — including Newbury — showed levels of PFAS above the state’s new standard, Suuberg said.
He said the state is also waiting for the U.S. Environmental Protection Agency to finalize testing requirements for PFAS discharges from wastewater treatment plants. Once those are in place, he said, the state will require monitoring for PFAS in treated wastewater that is discharged into the Merrimack River and other bodies of water.
The chemicals used in products from rain coats to upholstery have been dubbed “forever chemicals” because they accumulate in the human body and can take thousands of years to degrade.
Research has found potential links between PFAS and illnesses such as kidney cancer and high cholesterol, as well as complications in pregnancies.
Dozens of states are weighing proposals to eliminate PFAS in food packaging, firefighting foam and other products, in addition to setting limits on the contaminants.
New Hampshire set limits on four PFAS chemicals in public drinking water supplies, ranging from 12 to 15 parts per trillion. Its limits went into effect in 2019.
There are currently no federal standards for PFAS in drinking water, but guidelines set a combined limit of 70 ppt.
The state task force is required to submit a report with findings and recommendations to the Legislature by the end of the year.
BUSINESSWEST (April 28, 2021) – When COVID-19 forced a shutdown of the economy 13 months ago, Jeff Daley said, the impact on development was immediate.
“Everything came to a grinding halt,” the president and CEO of Westmass Area Development Corp. told BusinessWest. “The first few days, watching the economy tank, people were scared — they didn’t know where this was going to go.”
It became clear over the next several weeks, however, that projects would continue, and Westmass ramped back up fairly quickly, even as the health implications of the pandemic remained daunting (and, of course, still linger, despite the availability of vaccines).
“It changed the way we did business, though,” Daley added. “Zoom calls with state agencies and local agencies increased from zero to 100% in the first few months. We had to adjust quickly to having meetings and approvals and denials with a different form of communication.
“I give credit to towns and cities across the Commonwealth; everyone adapted really quickly,” he went on. “We saw some hiccups at the beginning of the pandemic, but when things started ticking up again, it appeared state agencies really had their stuff together, as well as cities and towns.”
Daley recently took part in a wide-ranging roundtable discussion with BusinessWest about the impact of the pandemic on development and environmental regulation. Also taking part, each bringing a different perspective to the discussion, were David Peter, principal with Site Redevelopment Technologies; Ashley Sullivan, president of O’Reilly, Talbot & Okun Associates (OTO); Mike Gorski, regional director of the Western Regional Office of MassDEP; and environmental attorney Christopher Myhrum.
Peter, whose company cleans up contaminated sites for redevelopment — including, recently, the Games and Lanes brownfields site in Agawam — said the new paradigm of communicating has been a challenge.
“It’s difficult to move forward,” he said. “We rehab sites that have been dormant for many years due to contamination, and it’s very difficult for us right now because a lot of it is interpersonal relationships — meeting with regulators around a table with big maps — and we can’t do that anymore. We’re at a real slowdown for any project still in the planning stages.”
Projects in active development are a different story and, in some cases, have benefited from the pandemic, he added. As one example, last spring, the firm was hauling lightly contaminated soil from Beth Israel Hospital in Boston to a site in Rhode Island, and was able to conduct about twice as many trips as normal due to the lack of traffic on the road during the economic shutdown.
“If you owned, say, a restaurant when this happened, you were severely hit. But many essential businesses benefited, like our trucking situation,” Peter said. “But the biggest impact was not being able to sit down with regulators, politicians, and neighbors. It really slowed us down.”
Sullivan agreed. “In general, we did see a slowdown, and some of the logistics became difficult; there was definitely an adjustment period. But I’ll say we adapted pretty quickly, which was amazing to see,” she said, noting that the company had recently made some investments in technology that eased the transition into a different way of conducting business.
And that transition was happening whether or not everyone was ready for it.
“If you had asked me two years ago if we could our job remotely, I’d have said, ‘absolutely not,’” Gorski said. “But we’ve been remote since St. Patrick’s Day 2020. It took a few weeks to figure things out, with staff working at home, and we made some long-term improvements in technology for certain staff.”
Since then, he added, the process has been smooth, if not ideal. For example, early on, “we were very, very lenient in terms of inspections,” but the office was able to conduct limited risk-based determinations and emergency-response actions. “Staff still needed to visit spills on the highway and other releases.”
MassDEP complemented any necessary in-person visits with virtual inspections through FaceTime video and submitted photos, Gorski added. And after the initial slowdown, the pace of activity has been relatively stable.
“We’ve been on par with past years with the number of inspections in the Western Region, with enforcement numbers being a little bit down,” he said. “I think we’ve done pretty well keeping a presence out there and, more importantly, keeping our staff safe and meeting COVID protocols.”
Myhrum knew any leniency wouldn’t last. “I think clients recognized the likelihood of reductions in inspections at the start of the shutdown order, but they were cautioned, at least by me, that inspections were likely to come back,” he said.
Myhrum, who also serves on the Westmass board, agreed with the other roundtable participants that various stakeholders in the development process, from developers to inspectors to municipal officials, handled the transition to remote operations remarkably well. And he believes the construction and development sector is on the rise after an unusual year.
“Yes, construction was deemed essential, but behind that are a lot of support organizations, and things necessarily slowed down,” he said. “And that has created a lot of potential energy for when things return to some semblance of normal. Beyond that, it has been something of a brave new world, but the adaptability to remote work has been striking.”
The most distressing pandemic-driven change in Gorski’s job is “the inability to collaborate on certain projects, to sit around a table and push those plans back and forth,” he said, adding that his agency and others have come up with some innovative ways to collaborate remotely. “We’ve become more productive in some ways. And there are some efficiencies with working from home. But we do miss out on the ability to build off collaborative ideas.”
Myhrum agreed. “Screen sharing cannot substitute for a 24-by-36, or larger, exhibit in terms of communicating ideas and demonstrating evidence of what one wants to do. It’s essential to not only understanding what a project is, but also building the trust that’s necessary among the parties to reach a goal together. I believe collaborative efforts within the office are very, very important.”
Some ways business was done in the past won’t completely return, he added, like the idea of people flying to and from California to attend a 15-minute pre-trial conference. “That’s gone; everything is done remotely, through Zoom or Teams or other platforms.”
But to undertake truly effective negotiations and other business, he went on, in-person meetings need to remain an important component.
Everyone figured out the new normal together, Gorski said, and that included the DEP. “We were very lenient during the first couple months, recognizing that companies were under a tremendous burden in terms of staffing. Once they figured out how to do things remotely, we started getting back into a normal program.
“Now, while we’re certainly not normalized, our inspection numbers here in the Western Region are on par with past years,” he added. “Some of the enforcement penalty numbers were down as well — we were careful how we adjusted penalties because of COVID — but that’s getting back to normal, too.”
Daley noted that any slowdown in regulatory activity was matched by a curtailment of development. “Everyone was trying to figure things out in the first month or two; I don’t think anyone was trying to move projects forward at a rapid pace. It all played in concert; environmental programs were moving forward at the same pace developments were with COVID.”
Sullivan said it was natural for the pace of activity to slow down as the logistics became difficult. She noted that her firm performs many environmental site assessments, doing due diligence about what a project’s environmental concerns may be, which requires communication with fire departments, boards of health, and other municipal departments. “A lot of those were closed for a while, the process would get delayed, and that would, in essence, delay the whole project.”
Reviews on the regulatory side slowed down locally as well, she said, but grace periods became the norm. “They were backing off enforcement a little bit, but it was unofficial. Some of it wasn’t clearly communicated, particularly in the first eight to 12 weeks, and we wondered when things would start up again.”
No one was surprised when it did, Myhrum said. “Massachusetts certainly has a reputation for sound and aggressive environmental enforcement, as well as rigorous regulation, which has gone hand in glove with statutory and regulatory requirements.
“I know, during the pandemic, we had two different cases involving air permits, which can be among the most complicated DEP issues,” he went on. “Those two permit applications were turned around faster than any we’ve worked on. I’d like to think we did a good job on the applications, but the turnaround times were most satisfactory to our clients.”
It’s difficult to gauge how the pandemic has affected regulation on the national level, Myhrum said, adding that a change in presidential administration will likely have a greater impact.
“The EPA under Trump was not known for being particularly aggressive, having a former coal lobbyist as its administrator. So I think one would be in error to believe the EPA’s priorities and activities are going to continue the way they did under the previous administration. I think it will be interesting to see how the situation plays out.”
Another issue impacting developers during the pandemic is the shift by so many companies to remote work, Peter said, noting that he does a lot of work in the seaport district of Boston, and commercial real estate there is worth about 50% of its pre-pandemic value, while suburban locations with plenty of fresh air and space have risen in value.
That trend may not last forever, Daley said, for some of the communication-related factors mentioned earlier.
“Once the pandemic subsides a little bit, I think people will go back to the office, if for nothing more than partnership and collaboration efforts,” he noted. “I know we do a lot of work on 24-by-36 paper and laying things out, and it’s hard to do that in a Zoom meeting, to look at plans and assess the true value of what you’re going to do.
“Not everyone will go back to work — I agree with that — but I do think, as time goes on and the pandemic hopefully subsides and we pass through this, people have to go back to the office, at least on a hybrid basis,” he went on. “I’m a firm believer in working together and collaborating, and Zoom doesn’t really produce that.”
Issues of Justice
Last month, Gov. Charlie Baker signed a new climate-change law that codifies a commitment to achieve net-zero emissions in 2050; authorizes the administration to implement a new, voluntary, energy-efficient building code for municipalities; allows the Commonwealth to procure additional offshore wind energy, and — most notably for urban developers — significantly increases protections for ‘environmental justice communities’ across Massachusetts.
Last month, Gov. Charlie Baker signed a new climate-change law that codifies a commitment to achieve net-zero emissions in 2050; authorizes the administration to implement a new, voluntary, energy-efficient building code for municipalities; allows the Commonwealth to procure additional offshore wind energy, and — most notably for urban developers — significantly increases protections for ‘environmental justice communities’ across Massachusetts.
EJ communities, as they’re known, are those which have, historically, been overburdened by poor air quality and disproportionately high levels of pollution; they are often low-income. The new law requires an environmental-impact report for all projects that affect air quality within one mile of an EJ neighborhood, and requires the DEP to conduct a stakeholder process to develop a cumulative-impact analysis as a condition of permitting certain projects.
“That’s needed, I think,” Daley said, noting that he hopes the environmental council the law calls for has adequate representation from EJ communities in Western Mass. “It’s important that we have representation on that council. Far too often, Western Mass. has one token person on a committee, and 17 from the Boston area. This is a great start, but our people need to have a say.”
Gorski said the emphasis on environmental justice is positive because people have a right to a meaningful say in what goes on in their neighborhoods.
“The DEP has had an EJ policy for some time, and we’ve had public involvement in the planning process, but the climate bill now makes that law, and we’re going to be proactively reaching out to various community groups to involve them and educate them, so when we have these public hearings for complicated permits and things of that nature, people understand what we’re talking about, and can come at it from a knowledgable viewpoint, rather than just ‘we don’t want that in our neighborhood.’ It’s important to give people a voice.”
Myhrum agreed. “EJ has evolved from policy to statutory law in Massachusetts,” he said. “People will have the opportunity to participate in an interactive way to discuss the impact and specific ways people are affected.”
It’s important to remember, Sullivan noted, that development projects in urban areas often have a positive impact on the environment, especially those that remediate brownfields and other contamination.
“I’d love to see more mixed-use revitalization and really cleaning up some of these issues,” she said. “At OTO, we love working on these projects, and we’re happy when there’s more funding and regulations pointing that way — if a development can be done in a way that could be responsible, with some thought behind it.”
While he believes there’s significant pent-up energy in the development community, Daley understands plenty of changes are coming related to energy and other aspects of doing business. In the short term, though, the way the pandemic has altered business as usual may have a broader effect.
“Is COVID going to be a transitional time for business, or is it transformational? It’s going to be both,” he said, answering his own question. “It’s going to be transitional in the way we do business, whether it’s the regulatory process or the actual development, lease, and sale of properties and the way they go to market. But it’s also transformational — an opportunity to rethink the way we do business, shifting us more into the digital age.
“I don’t think the office space will ever go away,” he went on, “but [technology] allows people to be more creative with their time and productivity and the way they do business.”
Even though MassDEP is still working largely remotely, Gorski said, “we look forward to getting back to hybrid, or something approaching normal operations. We’re still available for technical assistance, and we still want to collaborate to move projects forward.”
Depending on the project, Sullivan said, OTO works with developers, property owners, other civil engineers, structural engineers, attorneys, regulators … the list goes on, and speaks to the importance of communication, and the ways in which it has been altered by COVID.
“Each of those has been impacted similarly during the past year,” she noted. “We did adjust to not being face to face, but there’s so much that can be accomplished face to face, meeting on site. When that goes away, things slow down, and your meetings aren’t as effective.”
But her firm, like everyone else in the broad, complex, cross-disciplinary business of development managed to adjust, and even learned a few lessons about pivoting and melding traditional and remote ways of doing business.
“This is the new way,” she said. “We’ll take the best of both worlds and hopefully move forward.”
October 2018 marked the twenty-fifth anniversary of Massachusetts’ first in the nation experiment with privatizing the process for identifying, assessing and cleaning up releases and threats of release of oil and hazardous materials (OHM). Launched amidst controversy and skepticism, the privatized program has by any measure done an extraordinary job addressing the maladies afflicting real estate financing, development and redevelopment that prompted legislative and regulatory reform in 1993.
In 1983, Massachusetts enacted Chapter 21E to govern the reporting, assessment and cleanup of OHM releases and threats of release in the Commonwealth. Like its federal cognate, known popularly as the Superfund Law, Chapter 21E was designed to hold accountable under strict (without fault) and joint and several liability parties deemed responsible for conditions at so-called “disposal sites”—defined as the horizontal and vertical extent of an OHM release. Chapter 21E charged the Department of Environmental Protection with responsibility to promulgate regulations and administer the law. DEP developed and issued regulations known as the Massachusetts Contingency Plan (MCP).
By the late 1980s, the number of sites reported to the agency had overwhelmed its personnel’s capabilities to evaluate and respond to environmental consultants’ reports of contamination and recommendations for cleanup. Experience had demonstrated that contamination at or near a subject property could implicate liabilities far beyond real estate values. This potential exposure, combined with a “superlien” provision where the Commonwealth’s claims to recover response costs would supersede mortgage and other security interests in real estate, severely affected willingness of traditionally conservative lenders to advance funds secured by mortgage financing. The greatest impact was upon properties in what traditionally had been urban industrial centers and commercial locations where OHM had been or was currently being used or stored.
Especially hard hit were redevelopment projects for vacant or underutilized properties which might otherwise benefit from Affordable Housing and Historic Preservation tax credits. By the early 1990s, the combined unintended impacts of Chapter 21E had reached crisis proportions.
Widespread recognition of the fundamental problem of agency inability to manage the case load of existing sites and the continuing onslaught of reporting of new sites prompted representatives of real estate, legal, environmental consulting and environmental interests to convene to attempt to find a workable solution to the urgent problem. During negotiations, the concept of creating a new profession of independent environmental consultants to oversee and opine on compliance of OHM release reporting, assessment and cleanup was introduced. Debate about the feasibility of “privatizing” site cleanup was contentious. For many parties, and especially environmental groups, leaving the evaluation and approval of whether response actions at a disposal site adequately protected health, safety, public welfare and the environment was an anathema. How could environmental consultants working for a liable party paying the bills objectively judge their own work?
Invention of a Profession
To address the perceived inherent conflict of interest, negotiations evolved to establish Licensed Site Professionals (LSPs). LSPs are the essential component in Massachusetts’ privatized disposal site cleanup system. LSPs are state licensed environmental consultants qualified by education, experience and successful completion of a demanding exam.
Oversight and regulation by the governing professional regulatory body, the Board of Registration of Hazardous Waste Site Cleanup Professionals, impose a demanding, LSP performance standard derived from the Code of Ethics of the National Society of Professional Engineers: “A LSP shall hold paramount public health, safety, welfare and the environment in the performance of professional services.”
Licensure demands compliance with continuing education requirements and maintaining current understanding of policies, guidance and MassDEP site audit reports of opinions previously submitted by LSPs on behalf of the parties they represent at other disposal sites. The LSPA has played a vital role in the creation and sustenance of the privatization effort and instilling public and private confidence in the profession.
MCP Overhaul and Streamlining Risk Assessment
To guide and assist LSPs in the privatized program, DEP issued (and has since revised on multiple occasions) a completely revised MCP. The finer points of the amendments are beyond the scope of this discussion. Particularly significant, however, was establishment of the risk-based standards for specific contaminant constituents that allow for parties performing assessments and cleanups to “risk away” the need to clean up sites to pristine levels. The MCP provides means to determine exposure point concentrations and compare them to listed quantitative standards for different soil and groundwater conditions and determine conclusively if a site presents unacceptable risk. Alternative risk assessment methodologies are available for use in specific circumstances.
Notices of Activity and Use Limitations
The MCP revisions also created Notices of Activity and Use Limitations (AULs). AULs are emblematic of the intended objectives of the revised cleanup program. Simply stated, AULs allow parties to assess disposal site risk from sites based on realistic current or projected future conditions that can be locked in place with institutional controls, most often by deed restrictions recorded in Registries of Deeds or Land Court filings. Functional relief from having to clean up sites to pristine conditions while maintaining mandated levels of protection has meant savings of millions of dollars in cleanup costs.
How Privatization Has Performed
DEP issued at the close of FY2018 a statistical summary of site cleanup performance under the privatized system. On the one hand, as DEP acknowledges, the numbers are skewed by the rapid turnaround of sites involving spills that are immediately reported and assessed and closed within relatively short periods of time. Still, in absolute terms, the numbers are impressive.
DEP records of release notifications begin in 1985, pre-dating the privatized program, but the sum is indicative of the size and scope of the disposal site notification, assessment and cleanup program. As of June 30, 2018, 50,425 OHM releases had been reported to DEP. As of the early 1990s only a small percentage of the sites reported up until that time could be considered “closed out.” Since 1993 and implementation of the privatized program, 37,187 sites have been cleaned up—averaging over 1400 per year—and the vast majority are resolved within the six-year time frame contemplated in the MCP’s multi-phased assessment and cleanup matrix.
As part of the compromises necessary to conclude negotiations successfully, it was agreed that DEP should maintain an active role in oversight of the most serious sites (Tier I) while sites seen as less threatening would be supervised by LSPs (Tier II). Chapter 21E requires DEP to audit a statistically significant number of the total submissions made to LSP. Most sites involve multiple submissions. As of June 30, 2018, DEP had performed over 48,000 audits. Not all audits are equal, however. The vast majority are summary reviews, followed by more comprehensive file audits. A significantly smaller percentage can involve actual site visits and subsurface investigation to confirm data and conclusions LSPs have submitted on their clients’ behalf.
Perhaps more significant than the numbers themselves is how the privatized program has affected commercial lending and other real estate and commercial lending market forces. Prior to privatization, there was a seemingly interminable logjam undercutting confidence in what might otherwise have been reasonable projections of what disposal site cleanup costs might be.
From the outset of the privatized system, environmental consultants could refer to the detailed provisions of the revised MCP and anticipate the likely scope of work necessary to evaluate site conditions and perform remedial actions. Level of confidence necessarily is proportionate to the availability of site information, and, without question, there remain instances where site assessment reveals surprise conditions increasing costs. But overall, LSP expertise and the MCP’s establishment of readily identifiable risk standards now allow parties to look to LSPs more confidently for budget projections. Privatization has contributed to a much greater level of predictability in transactions involving disposal sites.
Imitation as the Highest Form of Flattery
Other jurisdictions watched the development and implementation of Massachusetts’ privatized system, mostly with skepticism, but the success of privatization has prompted both Connecticut and New Jersey to legislate and implement comparable programs. The combination of LSPs and the MCP remain the nationwide benchmark of successful privatization, however.
Currently there are over five hundred LSPs. Not all are in Massachusetts, and some are dedicated employees of businesses that regularly must deal with spills and other OHM releases.
Establishment of a brand-new profession—and one subject to scrutiny by multiple and competing interests—presented a wide range of challenges. LSPs formed the Licensed Site Professional Association. Governed by an elected Board of Directors and with very limited support staff, the LSPA has been effective largely due to volunteering of members and other contributing professionals addressing specific subjects. From the outset, the LSPA looked to create committees to encourage and sustain the new cleanup system and provide assistance and guidance to members. Some of the committee titles show where efforts have focused: Continuing Education, Loss Prevention, Legislation, Regulations, Risk Management and Technical Practices.
There is also a committee devoted to LSP practice in Western Massachusetts. While one consideration for creation of the committee was to spare LSPs in the region from travelling to LSPA meetings inside I-495, another important consideration has been the demographic differences and range of issues with which western Massachusetts LSPs must deal. Most often, the Western Massachusetts Committee can arrange for previews or repeats of presentations made at the more distant meetings to the east.
The LSPA has served its membership and the public at large by its close attention to proposed legislative and regulatory changes. Most importantly, the LSPA brings the practical experience of the LSP community and clients to bear in influencing decision making around how to adjust and improve the privatized program. Not surprisingly, there remain disagreements among the competing interests that negotiated the privatized system, and the LSPA tries to protect its members from getting caught in the middle.
The LSPA has been very effective in maintaining the Brownfields Tax Credit available to parties who undertake cleanup in certain locations and for specific purposes. The credit, like the Low-Affordable Housing and the Historic Preservation tax credits, has been a significant factor fostering restoration of abandoned or underutilized real estate. Of course, LSPs themselves play significant roles in providing the opinions about the substance and sufficiency of site assessment and restoration at brownfields sites.
The privatized system is here to stay. Discovery of new disposal sites continues, but data indicate that improvement of OHM management practices and, more specifically, the regulatory requirements governing installation, maintenance and use of underground storage tanks are alleviating the operational legacy of current OHM transport, use and disposal. Unfortunately, one can be certain there are major disposal sites yet to be discovered. However, in Massachusetts, unlike many jurisdictions, there is a predictable system for addressing disposal site assessment and cleanup, that has been serving and continues to serve both public and private interests.