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.

Drinking-Water and Wastewater Treatment. Protecting water supplies and ensuring continued wastewater treatment and service fall under the categories of “essential services” and “essential activities” vital to public health and safety, which the State Water Resources Control Board (Board) confirmed in a statement issued Friday, March 20. Compliance with all Water Board orders and requirements (including regulations, permits, contractual obligations, primacy delegations and funding conditions) remains mandatory.

The Board now requires regulated entities to provide immediate notice if it becomes apparent that a Board order or requirement cannot be met due to government directives or guidelines related to COVID-19. Notices must include the following information:

  • The specific Water Board order, regulation, permit, or other requirement that cannot be timely met,
  • The COVID-19 directive or guideline that creates the conflict,
  • An explanation of why the responsible entity cannot timely meet the Water Board order or requirement, and
  • Any action that the entity will take in lieu of complying with the specific Water Board order or requirement.

Notices must be sent to the correct agency official, with responsibility for the relevant program or division; a list of contacts is available on the Board website.

Underground Storage Tanks (USTs). Requirements for operating and monitoring USTs remain in full effect. The Board issued recommendations to all UST stakeholders on March 19 urging adherence to all public health and safety guidelines, and reminding UST facility operators that even where releases are infrequent, critical UST leak detection, monitoring, and cathodic protection equipment must remain operational and monitored, with appropriate responses to all leak detection and monitoring alarms.

The Board stressed that all UST owners and operators should document any and all circumstances that lead to delays or other lapses in regulatory compliance. Documentation should include records that equipment remains operational and of all action taken in response to specific circumstances. If compliance cannot be achieved, owners and operators should, at a minimum, provide the following documentation:

  • Communication with designated operators and service technicians;
  • Cancellations and the reasons associated;
  • Records of public closures or restrictions; and
  • Any other relevant information showing the efforts made to maintain compliance to the extent possible.

The Board’s statement also provided guidance to Certified Unified Program Agencies (CUPAs) assisting UST owners and operators in returning to full compliance following the COVID-19 emergency, emphasizing that complete documentation of good faith efforts to remain in compliance may be considered: “CUPAs cannot waive statutory or regulatory requirements. CUPAs can, however, use enforcement discretion.”

Fuel Facilities and Providers. The California Energy Commission (Commission) issued a statement on March 17 to clarify that all elements of the fuel supply chain are considered essential services, not to be restricted by state or local orders regarding COVID-19. Facilities to remain fully operational include:

  • Refineries
  • Pipeline operators*
  • Distribution terminals
  • Tanker trucks
  • Fuel wholesalers
  • Electric vehicle chargers
  • Hydrogen refueling stations

The Commission issued the clarification after several local orders failed to list fuel suppliers as exempt from business closure requirements. Regulatory requirements remain in effect for these facilities.

*A full discussion of the status of federal and state regulations and enforcement related to pipeline facilities is available here.

Air Quality Enforcement. California Air Resources Board (CARB) Chair Mary Nichols issued a statement that, although the Board has taken action to protect the health and safety of the public and employees that may result in temporary delays, CARB regulations “continue to be in effect and deadlines apply.” The Board has postponed meetings and seminars, and staff will be telecommuting through April, noting that they will provide additional updates in the coming weeks, as CARB expects to implement new procedures to minimize disruptions and ensure continuity of operations.

Public Participation and Comment. The Governor issued an executive order suspending certain public meeting requirements to reduce the need for in-person meetings and allow agencies to continue to conduct business while minimizing risk to employees and public officials. However, several agencies have taken steps to ensure continued opportunities for public participation.

The Department of Water Resources announced a 30-day extension of deadlines for public comments on groundwater sustainability plans to May 15, 2020, and June 3, 2020.

The California Public Utilities Commission adopted new rules to facilitate public comments at its March 26, 2020 meeting, allowing members of the public to make verbal comments by telephone, or to have written comments submitted by email read aloud. The CPUC also issued letters to energy, water, sewer and communications companies, adding agency backing for voluntary moratoriums on service disconnections due to unpaid bills.

State and local agencies in California will continue to respond to rapidly changing circumstances, and we will provide relevant updates. For more information on changes in environmental compliance and policy affecting businesses and regulated entities with operations or interests in California, contact Angela Levin or Louise Dyble.