On March 26, 2020, the Environmental Protection Agency (EPA) issued guidance regarding enforcement discretion in light of the COVID-19 pandemic. The guidance acknowledges that COVID-19 may impair compliance with environmental laws and regulations and sets forth the steps that regulated entities must take to qualify for enforcement relief. The policy is retroactive to March 13, 2020, and has no end date.

General Conditions for Enforcement Discretion.

The guidance provides that regulated entities should make every effort to comply with their obligations, but if compliance is not reasonably practicable, they should:

(a) act responsibly to minimize the effects and duration of noncompliance;

(b) identify the nature and dates of noncompliance;

(c) identify how COVID-19 was the cause of noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;

(d) return to compliance as soon as possible; and

(e) document the information, action or condition specified in (a)-(d). Continue Reading EPA Enforcement Discretion Policy in Response to COVID-19 Pandemic

On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its preliminary determination to regulate perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). The preliminary determination marks an important step in setting maximum contaminant levels (MCL) for PFOS and PFOA.

EPA’s preliminary regulatory determination is required by the Safe Drinking Water Act (SDWA). Under the SDWA, EPA must publish a list of contaminants, the Contaminant Candidate List (CCL), that are not subject to an MCL every five years.1 EPA must then decide whether to regulate at least five of the contaminants on the CCL.2 To make a determination to regulate (i.e., a positive determination), EPA must find that: (1) consumption of the contaminant may result in adverse health effects; (2) the contaminant has been found in public water systems with a frequency and at levels to raise public health concerns; and (3) regulation of the contaminant presents a meaningful opportunity to reduce associated health risks.3 Continue Reading EPA Announces Preliminary Determination to Regulate PFOS and PFOA

On January 23, 2020, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) (collectively, “Agencies”) finalized the Navigable Waters Protection Rule, which redefines the jurisdictional scope of the Clean Water Act (CWA or “Act”).  The new rule will go into effect 60 days after it is published in the Federal Register, at which point it will almost certainly be challenged.  If it is ultimately implemented, the Navigable Waters Protection Rule would significantly affect the way waters (particularly wetlands) are regulated.

The Agencies’ claim that the new rule will clarify and streamline the definition of waters of the United States (WOTUS), and therefore, make jurisdictional determinations simpler and more efficient.  The Navigable Waters Protection Rule aims to accomplish this by creating certain categories of jurisdictional waters; excluding specific, non-jurisdictional waters; and defining terms to further delimit jurisdictional waters. For further insights into what this new rule may mean for the regulated community, please see our latest Client Update.

The New York State Public Service Commission (“Commission”) leveraged an unprecedented interpretation of its “just and reasonable” regulatory authority to impose drastic changes to the retail energy marketplace, which will have ripple effects on Renewable Energy Credit (REC) markets, retail energy contracts, Distributed Energy Resource (DER) providers and other clean technology stakeholders. The Commission’s Order Adopting Changes to the Retail Access Energy Market (“Order”) establishes enhanced eligibility criteria for Energy Service Companies (ESCOs), mandates price caps on ESCO products, severely limits the type of value-added products and services ESCOs can provide to customers, and mandates granular transparency of energy product information on utility bills. By March 11, 2020, all ESCOs must file revised eligibility applications detailing how they will comply with the Order or risk immediate suspension. For insights into what this Order may mean for the future of retail energy markets and DER products in New York State, please see our latest Client Alert.

Public Service Commission Resets Retail Energy Marketplace:
All ESCOs Required to Re-Register Under New Rules and Completely Revise Product Offerings

On December 12, 2019, the New York State Public Service Commission (“Commission”) voted to reset the retail energy marketplace by requiring all Energy Service Companies (ESCOs) to re-register for eligibility to serve customers. While the final order remains to be issued, the Department of Public Service (DPS) explained that as part of the re-registration process, it will subject each ESCO to new eligibility requirements and require all ESCOs to modify their product offerings to fit one of four categories. Continue Reading Reset 2.0?

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