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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.

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.

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.

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.

On March 3, 2020, the United States Environmental Protection Agency (EPA) published its most recent proposed revisions to the federal Coal Combustion Residuals (CCR) rule. The proposal, which EPA has coined “Part B” to its “Holistic Approach to Closure,” is a follow-up to the Part A proposal, which EPA published in November 2019. Part of a flurry of CCR-related activity, the Part B proposal comes just days after EPA issued its proposed federal CCR permit program.

As we previously reported, the purpose of EPA’s Part A proposal was to align the Agency’s regulations with the D.C. Circuit Court of Appeals’ August 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018). To that end, Part A proposed to (1) classify clay-lined surface impoundments as unlined, and (2) require all unlined surface impoundments to close.

On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.

On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its intent to publish a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Publication will initiate a 60-day notice and comment period that represents the first step toward the adoption of Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, two of the best-understood and most common compounds under the umbrella of perfluoroalkyl substances (PFAS).

On Monday, January 27, the United States Supreme Court issued a notice granting both Florida and Georgia 45 days to respond to a special master recommendation recently issued by New Mexico-based federal Tenth Circuit Judge Paul Kelly, as well as time to address each other’s arguments in subsequent legal briefs.

The notice sets the stage for the justices to potentially hear the case later this spring or more likely, according to Court observers, in their next term that begins in October, 2020. The Court could also decide the 7-year-old case, Florida v. Georgia, without further oral arguments depending on the parties’ submissions. Florida sought to limit Georgia’s water usage in the Apalachicola-Chattahoochee-Flint river basin, where the Chattahoochee River transects Alabama and Georgia, the Flint River flows through rich South Georgia farmland, and the combined flows into the Apalachicola River ultimately reaches Apalachicola Bay and the Gulf of Mexico. The headwaters of the basin within Lake Lanier serve as the main source of drinking water for a majority of metro Atlanta and irrigates farms in southwest Georgia, providing an economic impact to Georgia estimated to be $13.8 billion.

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.