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…

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…

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…

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…

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,…

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…

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…