California has a State Water Resources Control Board and nine Regional Water Quality Control Boards, which among other things police the groundwaters of the State to keep them free of contamination.
These agencies have just issued an Order specifying that, notwithstanding the present health crisis, regulated businesses are still expected to comply with all of the agencies’ requirements. The Order, found at https://www.waterboards.ca.gov/resources/covid-19_updates/index.html, provides:
“Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.”
The Order does provide for an avenue by which a regulated business can seek relief from agency requirements. However, any such request must provide, among other things, an explanation of why timely compliance with outstanding Orders or other requirements is not possible and what alternative action the business proposes to take in lieu of strict compliance.
The other main environmental regulatory agency in California, the Department of Toxics Substances Control, has not yet issued any similar Order to that of the water boards. However, it is prudent for regulated businesses to assume that the Department will also insist that the regulated community continue to comply with any outstanding Orders or requirements notwithstanding the ongoing health emergency.
However, it appears that federal EPA will exercise a good deal of enforcement discretion, affording regulated business leeway, as reflected in a memorandum issued by the agency on March 26, 2020:
"The EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in this policy. For noncompliance that occurs during the period of time that this temporary policy is in effect, and that results from the COVID-19 pandemic, this policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy."
You can find the memorandum at https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.
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