While the U.S. Environmental Protection Agency (EPA) has shown some flexibility in enforcement of environmental regulatory obligations during the outbreak of COVID-19, at this stage in the pandemic, California will not typically excuse noncompliance due to the COVID-19 pandemic.
On March 26, 2020, the EPA issued a memorandum implementing a temporary enforcement discretion policy due to the COVID-19 pandemic. Under the policy, the EPA will not seek penalties for certain missed environmental obligations (see our related blog post). On April 10, 2020, the EPA issued follow-up interim guidance that offers some factors to consider for response actions related to cleanup and emergency response sites where the EPA is the lead agency or has direct oversight of or responsibility for the work being performed (see our related blog post). As evidenced below, California and its environmental, safety, and health agencies have shown less flexibility in their enforcement positions.
California’s top legal official, Attorney General Xavier Becerra, criticized the EPA’s COVID-19 policy: “By giving wide berth for pollution to go unmeasured and unaccounted for during this critical time, the EPA’s Noncompliance Policy will likely further endanger the public health and safety of communities exposed to that pollution and increase the likelihood that the most vulnerable Americans suffer the most serious consequences from the virus.” Becerra also supported an April 1 petition from environmental and advocacy groups that want the EPA to issue an emergency rule requiring public notice of any relaxed air and water quality monitoring and reporting due to the coronavirus pandemic.
The California Environmental Protection Agency (CalEPA) clarified that its enforcement authority “remains intact” in spite of the EPA’s March 26 memo. Sam Delson, the CalEPA’s deputy director for external and legislative affairs expanded: “CalEPA expects compliance with environmental obligations, especially where failure to follow the law creates an imminent threat or risk to public health.” Delson acknowledged that some companies might need enforcement relief, but that they should contact CalEPA before falling out of compliance.
Other California environmental enforcement agencies have issued their own responses to COVID-19-related impacts. Specifically, the State Water Resources Control Board and the nine California Regional Water Quality Control Boards (CA Water Boards), the California Air Resources Board (CARB), the California Department of Toxic Substances Control (DTSC), and the California Department of Occupational Safety and Health (Cal/OSHA) have provided direction for complying with regulatory requirements during the COVID-19 response. In short, all regulatory deadlines remain in effect, and the agencies will continue enforcement actions. Companies are encouraged to reach out to their agency contacts if they have questions or are facing COVID-19-related compliance impacts or delays.
At this stage in the pandemic, California’s message is that environmental compliance remains a high priority, and agencies will not typically excuse noncompliance, despite shelter-in-place orders. However, this is a unique and fast-changing situation, so it is important to regularly check for updates and to contact relevant environmental agencies if your company is considering whether to temporarily reduce or suspend response action work. Reed Smith actively monitors these issues and works with clients to provide them regulatory flexibility where warranted by case-by-case fact patterns.