On July 24, 2019, the New York State Department of Health (DOH) proposed drinking water standards for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).  The DOH set the maximum containment level (MCL) for both PFOS and PFOA at 10 parts per trillion (ppt), the same level recommended by the Drinking Water Quality Council.  Should the proposed rule become final, the MCLs will apply to all public water supplies regulated by the DOH.  Before the DOH can finalize the rule, there will be a period of public comment, which lasts 60 days from the date of this notice. Continue Reading New York Proposes MCLs for PFOS and PFOA

New York State is quickly ramping up its regulation of chemicals as it relates to consumer products. First, the New York State Department of Environmental Conservation (“DEC”) promulgated new regulations last year, known as the Household Cleansing Product Information Disclosure Program (“Program”), that will be effective starting October 2, 2019. The Program will, among other things, require manufacturers to disclose on their website the ingredients of household cleansing products that are “distributed, sold, or offered for sale” in New York State, and “the nature and extent” of any research and investigations on the ingredients’ effects on human health and the environment. Continue Reading New York Ramping Up Oversight of Chemical Substances in Consumer Products

On April 1, 2019, the New York legislature passed the State’s $176 billion budget for fiscal year 2020. Included within the budget were two significant environmental measures aimed at curbing waste: a ban on plastic bags and a requirement that food waste be diverted from landfill. Continue Reading New York State Bans Plastic Bags and Diverts Food Waste

Section 401 of the Clean Water Act (“CWA”) provides states and tribes with a mechanism by which they may address the impacts of federally issued permits and licenses, such as dredge and fill permits issued under CWA § 404 and National Pollutant Discharge Elimination System permits under § 402. Pursuant to § 401, a federal agency cannot issue a permit or license for an activity that may result in a discharge to a water of the U.S. unless the state (where the discharge would occur) grants or waives the request for a Water Quality Certification (“WQC”). Under the CWA, states have a maximum of one year to act on WQC requests. Applicable U.S. Army Corps of Engineers (“USACE”) regulations at 33 CFR § 325.2, however, set a default time period of 60 days to act on such requests. Continue Reading Major Acceleration in Time Frame to Act on Water Quality Certification Requests

The Third Circuit recently concluded that the owner of a remediated site could be liable under Section 107(a) of CERCLA for remediation costs incurred prior to its acquisition of the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem. LLC 906 F.3d 85 (3d Cir. 2018).

The facts of the case are straightforward enough. Trainer Custom Chemical (“Trainer”) purchased property (“the Site”) at a tax sale knowing that it was contaminated. At the time of purchase, the Pennsylvania Department of Environmental Protection (PDEP) had spent more than $800,000.00 in remediation costs. Continue Reading Third Circuit Holds Owner Liable for Pre-Acquisition Remediation Costs under CERCLA

Earlier this month, the Fifth Circuit held that sovereign immunity protected a number of state agencies and universities from Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) liability. Generally stated, sovereign immunity is a legal doctrine that prohibits private individuals from bringing civil lawsuits or criminal prosecutions against the state. State immunity from lawsuits is provided by the Eleventh Amendment, while the Supreme Court has established a similar rule for suits against the federal government. Sovereign immunity is not absolute, of course. The states and federal government may waive immunity or consent to the lawsuit. Continue Reading Fifth Circuit Court of Appeals Holds Sovereign Immunity Bars CERCLA Action Against State Agencies and Universities

On August 21, 2018, the Environmental Protection Agency (“EPA”) proposed a new rule which would replace the Obama-era Clean Power Plan (“CPP”) and establish new emissions guidelines for states to address greenhouse gas (“GHG”) emissions from electric-generating power plants. As background, the CPP was stayed by the Supreme Court in a 5-4 decision in February of 2016 before the rule ever went into effect. More recently, in October 2017, the EPA announced its intention to effectively repeal the CPP because it “exceeded” the EPA’s authority. Now, the EPA is proposing to enact the Affordable Clean Energy rule (“ACE Rule”) to reduce GHGs while giving states more flexibility to achieve that goal. Continue Reading EPA Proposes to Replace Clean Power Plan with Affordable Clean Energy Rule

Earlier this month, the United States Environmental Protection Agency (“EPA”) issued a memorandum that defines Adaptive Management (“AM”) and calls for its expanded implementation at Superfund sites across the country. The push for AM derives from one of many recommendations made by the EPA Superfund Task Force (“STF”), which was established by former EPA Administrator Scott Pruitt. As we previously reported, one of the former Administrator’s main priorities while in office was to revamp the Superfund program and restore it to “its rightful place at the center of the Agency’s mission.” The STF was established to further this goal and to “provide recommendations for improving and expediting site cleanups and promoting development.” Continue Reading EPA Recommends Use of Adaptive Management Techniques at Superfund Sites

Last Thursday, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (“NYSDEC”) announced the first major update to New York’s State Environmental Quality Review Act (“SEQRA”) regulations in over 20 years. SEQRA establishes a process to systematically consider environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local or state agencies. Seggos believes the updates will “streamline the environmental review process and encourage sustainable development and renewable energy development without sacrificing SEQRA’s integrity or the environmental protection it affords.” Continue Reading New York State Department of Environmental Conservation Announces the Adoption of Revisions to the Regulations that Implement the State Environmental Quality Review Act

New revisions to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) have been enacted as part of the Brownfields Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). Key changes include extension of the Bona Fide Prospective Purchaser (“BFPP”) defense to tenants, increased funding for remediation grants and new authorizations for federal and state funding through 2023. Continue Reading CERCLA Changes Bring More Funding for Cleanups and Comfort for Tenants