Future focused environmental law, today
Burns represents businesses and individuals in all areas of environmental law. We prosecute, defend, and mediate hazardous waste cases under the federal Superfund law and its Massachusetts counterpart, Chapter 21E, the Clean Air Act, and several other environmental statutes. We negotiate agreements and settlements with the EPA, state and local environmental authorities under hazardous waste, clean water, clean air acts and wetlands laws. We apply for, and seek transfer of, environmental permits for property owners, manufacturing operations and waste disposal firms. We provide advice on compliance with environmental laws and strategic planning for minimizing exposure to liabilities.
Our team counsels several major participants in federal Superfund cases at sites throughout New England and in other parts of the country. We negotiate settlements and agreements with the EPA, draft complex documents to implement the settlements, and mediate disputes between responsible parties. We are often called upon to evaluate and develop strategies concerning the environmental risks faced by buyers, sellers, borrowers, lenders, landlords, and tenants in real estate, corporate and financing transactions. We bring and defend hazardous waste cleanup cases by and against private parties. We also appear before, and negotiate with, numerous state and local environmental authorities.
Our brownfields redevelopment practice combines the skills of its environmental and real estate attorneys to address the specialized needs of clients who acquire, develop, or finance contaminated real estate. We help clients minimize risk and maximize return in this highly regulated area. Our team combines their knowledge and experience in federal and state cleanup requirements and other environmental laws with their experience in legal issues related to acquiring, developing, and financing real estate.
Real estate developers, investors, and lenders turn to us when acquiring, developing, and financing projects such as office buildings, industrial parks, manufacturing sites, research and development space, shopping malls, retail store sites, apartment buildings, condominiums and residential subdivisions. We provide our clients with the full spectrum of services necessary to bring these projects to fruition, from negotiations with regulators, zoning, permitting, and acquisition, through financing, construction, leasing, and disposition.
Drinking Water and Wastewater
We work closely with water suppliers and wastewater facilities and support cities, towns, and developers pursuing strategic projects that address critical drinking water supply and wastewater management goals. We have represented communities on appeals to the federal Environmental Appeals Board on NPDES permits, adjudicatory hearings before MassDEP on large wastewater infrastructure projects, and package treatment plans for commercial and residential projects. We also represent developers on new source approvals and complex water supply and wastewater permitting before local zoning authorities and MassDEP.
- Advised a municipal water system to address PFAS in drinking water to ensure compliance with existing health advisories and proposed regulatory requirements.
- Executed a successful litigation strategy to secure and defend a water supplier’s Water Management Act Registration.
- Represented a municipal water system in enforcement negotiations with MassDEP on a schedule for removal of drinking water lead service lines in compliance with EPA’s Lead & Copper Rule. In a first-in-the-nation settlement, through an ACO, the City agreed to an aggressive schedule for identification and removal of all public lead service lines and private connectors at no cost to the property owners. The inventory and removal work will be funded by an EPA $10 million WIIN grant (the largest in the US), state Clean Water Trust grants and loans, and a modest water rate increase. The settlement advances environmental justice and protects safe, clean drinking water.
- Represented a municipality seeking permits for a state-of-the-art water treatment facility.
- Represented a municipal wastewater treatment facility in an appeal of its NPDES permit to the Environmental Appeals Board in Washington, D.C., and ultimately negotiated a revised compliance schedule in its permit. This enabled the town to complete assessment and feasibility studies to identify a comprehensive and cost-effective plan to treat and reduce effluent concentrations.
- Negotiated a settlement for a municipal client resolving an environmental organization’s administrative appeal of a groundwater discharge permit for upgrades and increased sewage flow to its wastewater treatment facility. The settlement agreement included the development of a nitrogen offset plan for increased concentrations in watershed flow to an impaired embayment and evaluating nitrogen pollution reduction measures, including an ocean outfall. In a second adjudicatory appeal of the permits for treated sewage effluent infiltration beds and an expanded sewer pipe collection system, we negotiated a settlement for monitoring nitrogen levels, developing a nitrogen offset plan, and incorporating methods from the Cape Cod Water Quality Management 208 Plan.
- Secured a MEPA Advisory Opinion that proposed land alterations (including a five-year look back) that did not require environmental review and a MassDEP determination that a wastewater treatment plant is not necessary for a 50-acre commercial subdivision in Lancaster. We also assisted in securing MassDEP approvals of two public water supply wells to service the subdivision.
- Developed and implemented a legal, political, and technical strategy for a municipal water district to address an advancing groundwater plume contaminated with 1,4-dioxane from a federal Superfund site. The plan included state funding of a well system to delineate the plume, EPA approval of a groundwater treatment system with a lower cleanup standard, an updated MassDEP threshold for concentration in drinking water, and exploration of pilot studies for a point-of-entry treatment system.
- Worked with wastewater engineers to negotiate with MassDEP on a groundwater discharge permit for a high-end subdivision during due diligence, enabling the developer to obtain financing to purchase the project.
- Assisted in securing approvals for water supply and sewer extensions to service residential developments.
- Developed a modified inter-municipal agreement to transport sewerage from an affordable housing complex in a town to the adjoining city’s treatment plant.
- Obtained a groundwater discharge permit for a package treatment plant to service a ski area.
- Negotiated an Administrative Consent Order to allow repairs to multiple failing individual septic systems at a large apartment complex and to develop a long-term plan to extend a sewer connection to the municipal wastewater treatment plant.
Wetlands and Waterways
We take a solutions-oriented approach to complex projects near wetland resources, including commercial and residential developments, marinas, piers and docks, and renewable energy facilities. Working with outstanding consultants, we execute permitting and adjudicatory strategies to address ecological concerns and secure results. We have deep experience before Conservation Commissions, MassDEP, and the Army Corps in adjudicatory hearings and have successfully defended many wetland permits in Superior Court.
- Prevailed in a hotly-contested MassDEP wetlands adjudicatory hearing in which the municipality and a ten-resident group challenged our regional homebuilder’s stormwater management system that serviced a 50-lot high-end residential development.
- Obtained a local Order of Conditions, a Water Quality Certification from MassDEP, and a 404 Permit from the Army Corps for a stream relocation to facilitate the revitalization of a shopping center, state-of-the-art stormwater management system, new riverfront habitat, and protection of the endangered Northern Long-Eared Bat.
- Negotiated Administrative Consent Orders with MassDEP to resolve restoration and mitigation for wetland damage caused by failed erosion controls for a national homebuilder and a regional condominium developer.
- On behalf of a national developer constructing an assisted living and memory care facility, negotiated an Administrative Consent Order with MassDEP to restore and mitigate wetland damage and approved a plan to remediate soil and groundwater contamination caused by a prior owner.
- Defended an Order of Conditions issued by a Conservation Commission under a local Wetlands Bylaw that was disputed by a neighbor but ultimately upheld by the Superior Court and the Massachusetts Appeals Court.
- Obtained local, state, and federal permits for a 69-acre residential compound at Polpis Harbor on Nantucket, including the construction of the main house, underground utilities, and a land conservation and management plan.
- Obtained Orders of Conditions for innovative erosion control measures (coir envelopes, serpentine sand fences, and plantings) to stop the rapid loss of a coastal bank that threatened to topple five multi-million-dollar homes into Massachusetts Bay.
- Obtained local, state, and federal permits to construct piers and docks for landowners on the North and South Shores, Cape Cod, and the Westport River.
- Secured local permits for a regional distribution center and warehouse for a national retailer.
- Obtained local, state, and federal permits to expand a private yacht club’s piers and slips, including dredging in an Outstanding Receiving Water.
- Obtained local and state permits that included a comprehensive management plan to protect spotted salamanders as mitigation for replacing an AM radio antenna array on a parcel with isolated and bordering vegetated wetlands containing vernal pools.
Compliance and Enforcement Defense
We represent businesses, individuals, and municipalities in defense of enforcement actions for violations of environmental law instituted by the U.S. EPA, MassDEP, the Department of Justice, the Attorney General’s Office, municipal agencies, citizen groups, and public interest organizations.
A significant portion of this work involves guiding clients to operate within approved parameters to promote public health, safety, and welfare for people and the environment, but it can also involve working with clients to respond to enforcement actions local, state, and federal regulators and represent their interests in the face of administrative orders, corrective actions, financial penalties, civil lawsuits for penalties, injunctive relief, as well as potential criminal lawsuits for jail time and fines.
We are experienced in leading a team of in-house and outside professionals to develop corrective action and compliance plans, environmental management systems, and Supplemental Environmental Projects. While the threat of enforcement has historically served as a chief incentive to secure compliance and remediation of harm, most cases are settled under Administrative Consent Orders and Consent Judgments.
We help our clients develop a “game plan” for negotiated settlements in which the agency fairly and consistently exercises its discretion in determining an appropriate enforcement response. We work with the client and the agency to promptly return to compliance, remedy adverse impacts, and fashion an appropriate monetary sanction tailored to the facts and circumstances of the case. We know the enforcers and what they seek, and we have earned credibility and a reputation as principled negotiators and fearless litigators.
- Advised medical cannabis grow operation in connection with citizen and municipal odor complaints.
- Negotiated Administrative Consent Orders resolving enforcement orders against an up-scale regional shopping center. The orders addressed an inner-city solid water transfer station, asbestos violations against a demolition contractor, and wastewater violations.
- Negotiated a Consent Judgment and obtained an air permit for a national metal recycling company. It incorporated advanced air pollution controls the performance of two Supplemental Environmental Projects for a waste tire disposal plan and an education program for managing mercury in consumer goods.
- Negotiated a settlement and new permit in consolidated appeals of a Cape Cod town’s groundwater discharge permit for its publicly owned wastewater treatment plant, involving novel issues of nutrient loading impacts on a coastal estuary.
- Negotiated a Consent Decree with the US EPA resolving a potential Clean Air Act penalty of tens of millions of dollars by using a Supplemental Environmental Project through which the client rebuilt and added odor control measures to its inner-city waste handling facility.
- Negotiated multiple Consent Decrees settling citizen group enforcement actions alleging violations of the NPDES stormwater discharge program under the Clean Water Act.
- Negotiated an Administrative Consent Order with MassDEP for the largest private wastewater treatment facility in Massachusetts, which services office, retail, restaurant, and residential uses. The order required a significant overhaul of the collection and treatment system, a multi-year schedule, water conservation measures, and a Supplemental Environmental Project.
- Appealed a MassDEP air plan approval and negotiated a settlement for neighbors abutting a metal recycling facility. The settlement required the facility to install air pollution controls and noise mitigation measures.
- Negotiated an Administrative Consent Order for a printing and dying company to install pollution controls and develop a plan to reduce the use of dyes with volatile organic compounds.
Zoning and Land Use
We work with clients and consultants to secure permits from federal, state, and local authorities, including compliance with zoning and subdivision control regulations and environmental reviews before MEPA and the Natural Heritage & Endangered Species Program, among many others. We also pursue or defend zoning and other land use permit appeals in hearings or state court.
- Successfully defended a casino developer in Land Court against an abutter challenge to the zoning and proposed dimensions of the Casino Overlay Zoning District.
- Obtained a Land Court judgment overturning a zoning board’s revocation of permits for a 35 MW biomass power plant project.
- Defended a golf course developer against an abutters’ appeal in Superior Court of zoning approvals for a $40M redesign of the golf course and clubhouse.
- Obtained state agency approvals for a ski area operator’s reuse of historical cabins within state park property.
- Helped multiple solid waste and recycling facility owners obtain zoning permits to develop or expand facilities.
- Advised solar and wind developers concerning zoning compliance and appeals.
- Negotiated deed and conservation restrictions to facilitate the development and preservation of property rights.
- Defended a biomass power plant against the Public Health Council’s attempt to require noisome trade site assignment.
We permit, negotiate, and advise on clean-up actions and litigate cost recovery claims for clients and environmental services companies involved with M.G.L. c. 21E or CERCLA hazardous waste sites. We also handle related purchase and sale agreements, environmental due diligence, development loans, insurance coverage, and brownfields redevelopments.
- Represented a municipality concerning PFAS in drinking water, which included providing legal advice on compliance with state and federal health advisories, guidance on regulatory requirements, and claims against responsible parties.
- Secured response costs and legal fees to remediate oil release for homeowner following 5-day trial in Superior Court.
- Advised a municipality regarding the acquisition of a contaminated industrial site for a park and recreational purposes.
- Advised counsel to the local union on the acquisition of a brownfields site for headquarters expansion.
- Advised in-house counsel of a national hazardous waste company concerning CERCLA liabilities at multiple Superfund sites where the company is a PRP.
- Rendered a legal opinion on environmental liability exposure and transaction structure for a Western Massachusetts attorney performing succession planning and reorganizing his clients’ oil distribution business assets.
- Recommended risk reduction measures to a Boston real estate attorney faced with asbestos-containing material disclosures and exculpatory language in a commercial lease for his client’s offices.
- Provided a risk analysis and recommendations to an LSP and real estate attorney regarding their client’s purchase of suburban property, including a former industrial waste landfill subject to a MassDEP Consent Order and other regulatory constraints.
- Negotiated a Consent Judgment with the Attorney General’s Office on an enforcement action for alleged violations of M.G.L. c. 21E at a former jewelry manufacturer.
- Defended LSP against professional malpractice claims for exposure to emerging contaminants.
- Negotiated dozens of transporter generator CERCLA cost recovery settlements.
- Obtained insurance coverage for contested oil and hazardous materials releases.
- Negotiated institutional controls and access agreements under CERCLA Consent Decrees and M.G.L c. 21E.
- Prepared and negotiated numerous Activity and Use Limitations to reach regulatory closure on contaminated properties.
- Responded to MassDEP audits and worked with LSPs to resolve deficiencies.
- Defended LSPs in license revocation proceedings.
- Negotiated and drafted brownfield redevelopment purchase and sales agreements for a national life fitness corporation, a national assisted living facility developer, and branch locations for a national bank.
Widely considered the pre-eminent solid waste practitioners in Massachusetts, our team represents industry leaders and municipalities on various solid waste matters. Our deep experience in this dynamic market – and with key regulators – benefits our clients navigating the siting, permitting, compliance, and enforcement shoals. Our strength is defusing public and regulator opposition to these facilities that are notoriously difficult to site, permit and operate.
- Obtained solid waste site assignments for the vertical expansion of an ash landfill, the increase in daily tonnage limit for energy from a waste plant, a new 1,000-ton per day solid waste transfer station, and conversion of two different C&D transfer stations to MWS and contaminated soils facilities.
- Negotiated an Administrative Consent Order resolving an odor-related MassDEP enforcement against an inner-city transfer station.
- Conducted over thirty site assignment public hearings as a Hearing Officer for municipal Boards of Health; most recently for a site assignment modification at a transfer station and two different landfill expansions.
- Negotiated an Administrative Consent Order for the use of contaminated soil in the closure of a landfill.
- Advised an aerobic digestion company on site selection and permitting of a state-of-the-art, first-of-its-kind U.S. repackaging facility.
- Represented citizens in enforcement cases against an unlawful solid waste facility masquerading as a farm.
- Defended the operator of a solid waste transfer station against the town’s attempt to terminate the operating agreement prematurely.
- Assisted a local hauling company in defeating a Selectmen’s Town Meeting attempt to franchise a residential collection.
- Represented a hauler in the purchase of brownfields property for a recycling facility.
- Obtained a solid waste site assignment major modification allowing an existing construction and demolition debris processing facility to transfer municipal solid waste and mildly contaminated soils by rail.
- Negotiated the terms of a letter of intent for a developer to use mildly contaminated soil to grade, shape, cap, close, and ultimately redevelop a former municipal landfill located on valuable coastal property.
- Obtained an Advisory Opinion under MEPA that a solar power array on a closed coal ash landfill did not require environmental review, which paved the way for issuance of a post-closure use permit by MassDEP and timely construction.
- Negotiated an Administrative Consent Order and remediation contract allowing a national solid waste landfill owner to remediate an off-site historical disposal area using mildly contaminated soil.
- Obtained a solid waste assignment for vertical landfill expansion using MSE berms.
- Negotiated multiple Administrative Consent Orders resolving waste bans and other enforcement matters.
- Secured approvals from local zoning boards of appeals for recycling and composting facilities.