July 13, 2020

Volume X, Number 195

July 13, 2020

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July 10, 2020

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In First Month of COVID-19 Guidance, the California Regional Water Quality Control Boards Have Issued Hundreds of Approvals for Compliance Extensions Submitted by Regulated Entities

On March 20, the California Water Boards issued guidance about complying with regulatory requirements during the COVID-19 shelter-in-place orders. We summarized that guidance here. In short, the guidance directs regulated entities to “immediately” notify the Board if compliance is not possible and to seek appropriate relief. Water Board staff committed to “do their best to respond within 24/48 hours.”

It has now been a month, and preliminary data about the extent to which regulated entities have sought relief, and how the Regional Water Boards have responded is available. The following information was presented today in a Bar Association of San Francisco’s Environmental Law Section Master Series Roundtable providing detail about extension requests and delays by regulated entities as of the week of April 20 (i.e., at the conclusion of the first month of the policy):

  • The Regional Water Boards across California have received 345 requests for extensions pursuant to the COVID-19 guidance.

    • The Los Angeles Regional Water Board has received the most requests (approximately 100 requests).

    • The San Francisco Bay Regional Water Board has received fewer requests (approximately 30 requests).

  • Regional Water Board staff have responded to 208 of these requests. The remainder are under review.

  • Approximately 80 percent of the requests, where a response has been made, have been accepted. Most of the approved requests relate to extensions to monitoring and reporting deadlines associated with site investigation and cleanup obligations.

  • Requests that were more likely to be denied included those pertaining to drinking water-related compliance and/or situations where the Regional Water Board staff determined that a delay could cause or contribute to an imminent and substantial endangerment.

When making requests for extensions or delays to Regional Water Board staff, regulated entities are encouraged to ensure they provide detailed information in the categories included in the guidance:

  • The specific Regional Water Board order, regulation, permit, or other requirement that cannot be timely met;

  • The inconsistent COVID-19 directive or guideline (i.e., this appears to request reference to shelter-in-place orders, or similar directives, that preclude or limit the ability to comply with environmental requirements);

  • An explanation of why the responsible entity cannot timely meet the Regional Water Board order or requirement; and

  • Any action that the entity will take in lieu of complying with the specific Regional Water Board order or requirement.

In addition to the specific criteria listed in the guidance, successful requests should (1) provide detailed information about why timely compliance is not possible and (2) address why the requested delay will not cause an imminent and substantial endangerment or, if there is a risk of such endangerment, why the delay is impossible to avoid under the circumstances and what steps will be taken to minimize any endangerment.

Regulated entities should also consider the type of relief that can realistically be provided by Regional Water Board staff. For example, in situations where compliance is mandated by an order formally issued by the Regional Water Board itself, staff may be unable to provide a literal “extension” and will instead only provide assurance, via exercise of enforcement discretion, that the delay will not result in penalties. However, any such assurance will be predicated on the thoroughness and accuracy of the information underlying the request for an extension and, if the Regional Water Board were to learn of new, relevant information, it could revisit its decision to exercise its enforcement discretion.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 114


About this Author

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

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...

Diana Pfeffer Martin Environmental Attorney Hunton Andrews Kurth Los Angeles, CA

Diana Martin’s practice focuses on environmental issues ranging from compliance counseling, to site remediation, enforcement defense and litigation, and transactional matters.

Diana has extensive experience counseling energy, manufacturing, mining, agricultural, food and beverage, and municipal clients, among others, on permitting and compliance issues associated with federal, state and local hazardous waste, hazardous material, solid waste, water quality, underground storage tank, and endangered species laws. Diana also works with clients on all aspects of site cleanup and reuse. In addition to her regulatory work, Diana's practice focuses on environmental litigation. She concentrates on matters that arise under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA) and California’s Proposition 65 as well as on product liability and contaminated property matters. Her experience includes administrative proceedings and multiparty complex negotiations. Diana also has substantial experience providing transactional support to clients.

Earlier in her career, Diana worked as in-house counsel for a permitted hazardous waste disposal company. Diana also practiced environmental law at other firms before joining the firm.

Diana is admitted to practice before the US District Courts for the Northern, Southern, Central and Eastern Districts of California.

Relevant Experience

  • Compliance Counseling and Permitting. Diana counsels clients on compliance and permitting issues under a host of regulatory programs. She has significant experience assisting petroleum, manufacturing and municipal clients on RCRA and California’s unique non-RCRA hazardous waste laws as well as on hazardous materials, and aboveground and underground storage tank requirements. Diana also does extensive water quality work, assisting clients obtain and comply with wastewater, storm water, and drinking water permits including sanitary sewer, NPDES, and underground injection control well permits. Diana regularly negotiates waste discharge requirements with Regional Water Quality Control Boards throughout California. She also has considerable experience with solid waste laws, including compliance with California’s Title 27 requirements. Diana’s regulatory work includes renewable fuels requirements, including compliance with the renewable fuels standard and California’s low carbon fuel standard.
  • Site Cleanup. Diana negotiates cleanup standards and site remediation agreements for impacted properties with private parties, insurers, and local, state, and federal regulatory agencies. She has considerable experience assisting industrial and municipal clients in negotiating cleanup and closure of solid and hazardous waste facilities as well as appealing decisions of various Regional Water Quality Control Boards. Diana also represents potentially responsible parties and steering committees in remediation proceedings and cost recovery actions.
Olivia Molodanof Environmental Attorney Hunton Andrews Kurth San Francisco, CA

Olivia assists clients with environmental issues involving regulation, compliance, enforcement and litigation.

Olivia’s practice focuses on environmental enforcement defense of corporations and municipalities and incident response. She is a critical member of the team defending a significant Clean Water Act enforcement action. She also represents clients involved in federal and state litigation, including environmental citizen suits, and in administrative actions and appeals.

Olivia advises companies in responding to environmental incidents and crisis...