No Relief from Agency Orders During Coronavirus Crisis

Attorney Stephen T. Holzer

Stephen T. Holzer | Shareholder

March 30, 2020

Steven L. Feldman | Shareholder

March 30, 2020

California has a State Water Resources Control Board and nine Regional Water Quality Control Boards, which among other things police the ground waters of the State to keep them free of contamination. These agencies have just issued an Order specifying that, notwithstanding the present health crisis, regulated businesses are still expected to comply with all of the agencies’ requirements. The Order provides:

“Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.”

The Order does provide for an avenue by which a regulated business can seek relief from agency requirements. However, any such request must provide, among other things, an explanation of why timely compliance with outstanding Orders or other requirements is not possible and what alternative action the business proposes to take in lieu of strict compliance.

The other main environmental regulatory agency in California, the Department of Toxics Substances Control, has not yet issued any similar Order to that of the water boards. However, it is prudent for regulated businesses to assume that the Department will also insist that the regulated community continue to comply with any outstanding Orders or requirements notwithstanding the ongoing health emergency.

If the Department of Toxics Substances Control does issue any guidance, we will provide additional information.

If you need additional explanation or help, please contact our Environmental Law Department attorneys, Stephen T. Holzer (sholzer@lewitthackman.com; 818-907-3299) or Steven L. Feldman (sfeldman@lewitthackman.com  or 818-907-3040).

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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