ENVIRONMENTAL LEGAL BLOGS

CAL EPA AND DTSC CLARIFY HARD LINE ON ENFORCEMENT DURING COVID-19 CRISIS

    In a previous post, I mentioned that the Regional Water Quality Control Boards and federal EPA were taking, respectively, a "harder" and "softer" line about enforcement of regulations and requirements during the present crisis.  I also said that, while the Department of Toxics Substances Control had not yet issued an official position, it was expected that DTSC would follow the Regional Board's "hard-line" position.

 

Indeed, on April 15, 2020, the California Environmental Protection Agency, which supervises both the water boards and DTSC, announced follows:

 

"Controlling pollution in communities with high rates of respiratory disease and multiple environmental burdens remains a priority for CalEPA – especially given recent studies that suggest a correlation between these factors and COVID-19 susceptibility. Accordingly, CalEPA will continue to respond, investigate, and – when necessary – take action on complaints related to environmental non-compliance. CalEPA will also fill any enforcement gaps left by the U.S. EPA’s decision to reduce environmental oversight. We will also maintain our capacity to respond to emergencies. The ongoing clean-up of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment, while ensuring worker safety."

This statement from Cal-EPA does allow that there may be exceptional circumstances warranting relief (such as a delay in meeting deadlines), but that the request must be addressed to the CalEPA, Regional Board or DTSC official supervising the regulated entity and be as specific as possible as to why the regulated entity cannot fulfill its responsibilities.

 

 

 

 

 

DTSC ANNOUNCES POSTPONEMENT OF HEARING ON PFAS/PFOS IN RUGS AND CARPETS

DTSC has just announced a postponement on a hearing designed to discuss making pfas/pfos in rugs and carpets a priority:

"OnFebruary 28, 2020, notice was given that that the Department of Toxic Substances Control (DTSC) proposes to adopt regulations listing Carpets and Rugs Containing Perfluoroalkyl or Polyfluoroalkyl Substances as a Priority Product. Due to the threat of COVID-19, the public hearing for this regulation, originally scheduled for April 13, 2020, is being postponed and will be conducted as a virtual hearing. The comment period for these proposed regulations also will be extended through the date of the virtual hearing. Within the next ten days, DTSC will announce the date, time, and specifics of the virtual hearing. 

"* Please refer to the original public notice that was sent to you on February 28, 2020. You may also view the original notice on our website at:

https://dtsc.ca.gov/regs/proposed-regulation-pfass-in-carpets-and-rugs/ **"

 

Federal EPA Covid-19 interim guidance for Supefund and RCRA sites

Following up on its guidance issued March 27, 2020, which didn't cover Superfund or RCRA sites. EPA has now issued guidance during the Covid-19 pandemic for such sites.  You can find the guidance at https://www.epa.gov/sites/production/files/2020-4/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf.

No Relief from Water Board Orders During Coronavirus Crisis; but on Federal Level, a Different Approach

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.

 

 

 

EPA ISSUES LIST OF DISINFECTANTS FOR CORONA VIRUS

    The EPA has published a list of disinfectants that my be useful against the coronavirus.  See https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2.

EPA ESTABLISHES GUIDANCE PORTAL

    Pursuant to President Trump's Executive Order (No. 13891), the EPA has announced that it is establishing a new internet guidance portal to provide public assess to the agency's guidance documents.  On October 31, 2019, the Office of Management and Budget set deadlines for setting up a searchable and indexed online data base for these guidance documents. 

   The portal is not fully set up as yet, although at https://www.epa.gov/guidance you can find links to guidance documents published by various environmental agencies.

VAPOR INTRUSION ANALYSIS CHANGES

The California Department of Toxics Substances Control and the State Water Resources Control Board are working on a guidance document for screening buildings for the presence in the structures of contaminated vapor intrusion from soil and groundwater.

Whereas in the past the regulatory focus has been on soil and groundwater directly under the buildings, the new, expanded focus will also take into account vapor intrusion from neighboring structures along with vapor intrusion from sewer lines and other preferential pathways lateral to the building at issue.  Under the new guidelines, it will be presumed that 3% of measured soil vapor contamination is making its way into the building at issue.

Four public meetings will be held on the draft guidance on April 1 at Cal EPA hq in Sacramento; on April 9 by webcast; on April 14 at the San Diego RWQCB hearing room; and on April 16 at the Council Chambers in the City of Commerce.  Written comments may be made until April 30.

Go to https://www.waterboards.ca.gov/water_issues/programs/site_cleanup_program/vapor_intrusion/ for information on the meetings, how to submit comments and for a copy of the Guidance.

 

 

 

BUSINESS LICENSES DEPENDENT ON CLEAN WATER ACT COMPLIANCE

       Senate Bill 205, enacted in California last fall, requires many businesses applying for a business license/license renewal to disclose the business' Standard Industrial Code.  The authorities are then charged with determining whether the Standard Industrial Code requires the business to have an Industrial General Permit under the State's implementation of the Clean Water Act for discharges into storm water conveyances.

    If the business has a Standard Industrial Code requiring a permit, then the business will either have to show its facility is in compliance with its permit requirements or to show that the business qualifies for an exemption from the permit requirement.  See California Business and Professions Code Section 16100.3 (a) (3) and Section 16100 (a) (3).  If the city or county in which a business is located does not have a business license requirement, then that business is also exempt from SB 205's disclosure requirements.

    If the jurisdiction at issue does have a business license requirement, and the business entity applying for a license is not in Clean Water Act compliance, the entity cannot do business in California (at least legally).  Therefore, business managers in California need to ensure their businesses are either exempt from the compliance requirement or have met the standards of the requirement.

DTSC GIVES PRIORITY TO REGULATING PFAS IN CARPETS

The DTSC has announced proposed revisions to Title 22, California Code of Regulations, Sections 66260.11, 69511 and has announced proposing the addition of Section 69511.2. 

Collectively, should these changes become effective, manufacturers of residential or commercial carpeting containing PFAS would have to remove the carpeting from sale in California or conduct an analysis to determine if safer options are available.  "PFAS" refers to per- and polyfluoroalkyl substances; these substances have the benefit of, among other things, being stain and oil resistant.

 

However, the chemicals are suspected of causing, among other things, cancer, cardiovascular problems and developmental problems.  The comment period set by DTSC expires on April 13, 2020. You can submit a comment by going to https://calsafer.dtsc.ca.gov/cms/commentpackage/?rid=12751 and at the right-hand bottom of the screen clicking "Submit a Comment".

California proposes to exempt coffee from Prop 65 warning requirement

    Just a short time after a California court ruled in Council for Education etc. v. Starbucks, et al., Los Angeles Superior Court Case # BC435759 that coffee requires a Proposition 65 warning, California regulators are seeking effectively to reverse the decision.

   The Office of Environmental Health Hazard Assessment ("OEHHA") has announced a proposed new regulation (Title 27, CCR Section 25704), which provides:

Exposures in listed chemicals in coffee created by and inherent in the process of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

 

OEHHA has concluded that coffee consumption does not increase cancer risk and, at least for some cancers, may actually lower risk.  You can find the new proposed rule, along with the explanation by OEHHA of the reasons underlying the proposed rule, at https://oehha.ca.gov/media/downloads/crnr/coffeeisor061418.pdf.

Interested parties have until August 30, 2018 to comment on the proposed rule.The referenced website gives more details about the public-comment period and about where to send comments.