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CalEPA, Stepping into the Perceived Breach, Issues COVID-19 Regulatory Compliance Statement

On April 15, 2020, the California Environmental Protection Agency (CalEPA), the umbrella agency for California’s environmental boards, departments, and offices (e.g., CARB, DPR, DTSC, OEHHA, SWRCB), issued a Statement on Compliance with Regulatory Requirements During the COVID-19 Emergency (CalEPA Statement). CalEPA’s Statement comes in the wake of numerous questions regarding environmental compliance obligations for California facilities impacted by COVID-19. It follows COVID-19 guidance issued by the United States Environmental Protection Agency (U.S. EPA) and various announcements by the state boards and local districts that are on the front lines of administering state, local, and federal environmental programs affecting public health and the environment, as well as companies operating facilities in California, like refineries, oil and gas terminals, mining, food processing, and other manufacturing operations.

 

The CalEPA Statement addresses three issues:

  1.  Continued operation of California’s environmental boards, departments, and offices

  2. Potential “compliance assistance” and what a company or other regulated entity must do to qualify for such assistance (i.e., enforcement discretion)

  3. Public participation in agency rulemaking and other processes when in-person public meetings are not allowed right now

Regulators conducting their duties: The CalEPA Statement focuses on assuring the public that California’s environmental boards, departments, and offices are continuing to operate. Referring to studies that show a correlation between COVID-19 susceptibility and respiratory disease and multiple environmental burdens, CalEPA states that it will continue to respond, investigate, and take action on complaints related to environmental non-compliance. It goes on to confirm its commitment to fill any “enforcement gaps left by U.S. EPA’s decision to reduce environmental oversight.” The CalEPA Statement also says that CalEPA will prioritize the ongoing cleanup of contaminated sites to abate or prevent imminent threat to public health or the environment, while ensuring worker safety.

Compliance assistance: The CalEPA Statement indicates that state environmental regulators recognize that some entities may need “compliance assistance” due to the COVID-19 pandemic. It sets forth parameters that need to be met for such compliance assistance. Key aspects of this include that notice must be provided before the entity “fall[s] out of compliance” (emphasis added) and that the request must be “time-limited” and “specific.” The extension of deadlines is an example of a “time-delimited remedy” according to the CalEPA Statement. Requests should be made by email, given that most agency staff are teleworking.

Public participation in agency processes: The CalEPA Statement recognizes that there may be challenges to public participation in hearings or comment processes and states that CalEPA remains committed to conducting all public participation activities and decision-making in an equitable, inclusive, and transparent manner. It offers no further guidance on what action the regulators will or should take in this regard. The issue presents some concern for regulated entities who may have permit applications pending or other regulatory commitments that require a public hearing in order to proceed. Perhaps in recognition of this point, CalEPA states that, as the COVID-19 emergency evolves, it will continue to advise stakeholders on how it is approaching these issues.

Regulated entities will need to continue to evaluate compliance issues, federal, state, and local, on a case-by-case basis to manage risk and, as needed, fulfill obligations in industries that are essential even during the COVID-19 pandemic.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 108
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About this Author

J. Tom Boer Environmental Practice Hunton Andrews Kurth San Francisco, CA
Partner

Tom’s experience at the EPA and DOJ provides him with a firsthand perspective into how the government pursues and resolves enforcement actions. He, in turn, offers clients invaluable insights into the processes, risks, issues and strategies for resolving alleged environmental liabilities.

Tom represents companies, municipal utilities, and individuals in federal and state environmental litigation, in defense of environmental enforcement actions and citizen suits, in response to catastrophic environmental emergencies and chemical releases, and in connection with site cleanup and cost...

415-975-3717
Shannon Broome Environmental Attorney Hunton Andrews Kurth Law Firm
Partner

Shannon is the managing partner of the firm’s San Francisco office and leads the firm’s California environmental practice.  Her prior experience as a chemical engineer in the oil and gas industry affords her unparalleled insights into the development of regulations and counsel on environmental, health and safety issues. Shannon also maintains an office in Washington, DC. Splitting her time between these offices allows her to help her clients wherever they may be. Shannon’s work focuses on permitting, enforcement, environmental incident response, and regulatory advocacy and litigation....

415 975 3718
Samuel L. Brown Environmental Practice Hunton Andrews Kurth San Francisco, CA
Partner

A former US EPA lawyer, Sam brings deep knowledge and practical experience to his clients’ environmental and natural resource concerns, helping them navigate the demands of regulatory agencies, ensure facility and corporate compliance, respond to government investigations and defend against enforcement actions.

Sam is experienced in domestic and international environmental and natural resource matters that impact client business and operations. His clients primarily include public and private sector manufacturing, mining, electric utility, oil and gas, municipal drinking water and...

415-975-3714
P. Scott Burton Environmental & Energy Hunton Andrews Kurth Los Angeles, CA
Partner

Scott leverages his extensive environmental, energy and natural resource experience to advise clients in the national and international public policy arenas.

Scott’s practice is broad in scope, covering a wide range of high-profile and high-risk issues across the nation and in overseas jurisdictions. He is often the first line of defense for domestic and multinational clients, leveraging his power plant operations background and natural resource economics consulting experience to help clients navigate complex regulations and policy issues affecting their business operations. He...

213-532-2108
Timothy J. Carlstedt Environmental Attorney Hunton Andrews Kurth San Francisco, CA
Associate

Tim is a seasoned environmental lawyer focusing on a broad array of environmental law, including compliance counseling, enforcement defense and litigation.

After more than twenty years practicing environmental law throughout California and on the east coast as in-house counsel, in government and at multinational law firms, clients rely on Tim’s practical and sound knowledge of environmental laws, regulations and issues to help them reach successful outcomes.

He has extensive experience navigating a variety of key environmental issues facing regulated communities today, such...

415-975-3742
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