The Nickel Report

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.