March 2020

California regulators have announced that the comment period for a recent proposal, Supplemental Guidance: Screening and Evaluating Vapor Intrusion, has been extended to June 1, 2020, and public workshops and webinars originally scheduled for April have been postponed until further notice.

Vapor intrusion occurs when contamination moves from groundwater and soil beneath a structure into the air, accumulating in occupied areas where they can result in safety hazards or health effects. Common vapor-forming chemicals include volatile organic compounds including trichloroethylene (TCE), mercury, polychlorinated biphenyl (PCB), and certain pesticides. Testing for vapor intrusion is an important step in investigating a potential development site, and in ensuring the health and safety of existing residential and commercial buildings.

As reported previously, California agencies are providing clarification and directives to guide regulatory compliance following Governor Gavin Newsom’s state-wide “stay at home” order issued on March 19, 2020. More specific guidance has now been issued by the State Water Resource Control Board (SWRCB) for Public Water Systems, and by the South Coast Air Quality Management District for all regulated entities.

Notably, although EPA has announced that enforcement discretion will be exercised in cases where routine compliance is not reasonably practicable, the Agency recognizes the authority of states and tribes to determine their own enforcement policies. Thus, California-regulated companies also must track how California agencies are approaching compliance during COVID-19 to ensure ongoing compliance.

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

The Troutman Sanders Corporate team has published the following article on COVID-19:

In a press release dated March 25, 2020, the United States Securities and Exchange Commission (the “Commission”) Chairman Jay Clayton encouraged “public companies to provide current and forward-looking information to their investors . . .” while continuing to…

The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

California agencies are beginning to provide clarification and directives to guide regulatory compliance following local “shelter in place” orders to slow the spread of COVID-19 in the San Francisco Bay Area, and Governor Gavin Newsom’s state-wide “stay at home” order issued on March 19, 2020. While the State Department of Public Health is taking the lead in coordinating the state-level response, other regulatory agencies responsible for essential services and facilities have begun to issue their first formal directives related to environmental compliance and safety.

The emphasis of regulatory directives thus far are clear: all requirements related to critical infrastructure remain in effect, with special provisions for immediate notification if there are circumstances or current government directives that could impede timely compliance.

In light of the coronavirus disease (“COVID-19”), the Office of Personnel Management (OPM) issued guidance directing that all Federal Executive Branch departments and agencies within the National Capital Region (Maryland, Virginia, and Washington, D.C.) allow maximum telework flexibilities to all current telework eligible employees. This guidance applies to the headquarters of the agencies most involved in regulating hydroelectric projects, such as the Department of Energy (DOE), Department of the Interior (DOI), including the National Park Service (NPS), Fish and Wildlife Service (FWS), Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), the Department of Agriculture (USDA), including the Forest Service (FS), and the National Oceanic and Atmospheric Administration (NOAA), including the National Marine Fisheries Service (NMFS). The Federal Energy Regulatory Commission (FERC), an independent agency within DOE, and the United States Army Corps of Engineers (USACE), housed within the Department of the Army, have also taken significant steps to respond to COVID-19.

The U.S. Court of Federal Claims (CFC) recently decided two cases related to flood events during Hurricane Harvey in Southeast Texas in 2017—one finding a taking by the United States Army Corps of Engineers (USACE) for flood control management and allowing landowner recovery, with the other holding that no taking occurred during the same event. As the incidence of flooding events may become more prevalent and unpredictable in a changing climate, these two decisions provide guidance for dam operators, including hydroelectric project operators, that conduct flood management activities in cooperation with, and sometimes at the direction of, USACE or other governmental entities.

On Tuesday, March 10, the comment period closed on the Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking (NOPR) to update its regulations implementing the National Environmental Policy Act (NEPA).

CEQ published its proposed rule on January 10, 2020 (see January 15, 2020 edition of the Environmental Law & Policy Monitor). CEQ’s proposed rule aims to update its regulations—which have not been modified since they were released in 1978—by streamlining the NEPA process and instituting changes to reduce delays and paperwork, and modifying the scope of agencies review of proposed actions.

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.