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
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.
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.
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.
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.
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 
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.”
The New York State Department of Environmental Conservation (“DEC”) recently issued an enforcement discretion letter stating that it will exercise its enforcement authority with respect to certain provisions of the recently revised Solid Waste Management Program. As we