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    As mentioned before in this blog, EPA has issued an enforcement memorandum indicating the agency is disposed to show some flexibility tin enforcing environmental standards during the nationwide economic shutdown as a result of the Corona virus pandemic.  Predictably, the agency action has been met with litigation.

    The liberal Attorneys General of nine States (New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia) have filed a lawsuit in the federal court for the Southern District of New York (New York, et al. v. United States EPA, et al.; case 20-CV-3714, filed May 13,2020) alleging that the new policy is too vague and too broad; that the policy will result in more pollution and threats to human health and the environment; and that the agency lacks legal authority to loosen environmental restrictions in the manner done irrespective of the economy.

     The lawsuit does not cite any actual harm that has so far occurred due to EPA's change in policy but argues only that all kinds of harm are threatened.  EPA is expected to argue that any specific harm that occurs can be adjudicated on a case by case basis when, as and if the controversy becomes ripe for adjudication,

    As a result of Proposition 67 passing in 2016, grocery stores in California have been banned from providing customers with plastic bags for their purchases.  opponents of the ban have argued that reusable grocery bags themselves posed a risk of environmental damage, claiming that diseases resulting from unwashed/inadequately cleaned bags are as dangerous as polluting the oven's with used plastic.

    Because of the corona virus, Governor Newsom has, at least temporarily, in essence agreed with the plastic bag ban opponents.  He has temporarily by Executive Order, suspended the ban until June 22nd on the basis that the reusable bags pose too much danger of carrying the corona virus from being inadequately cleaned.  FYI.

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Indeed, on April 15, 2020, the California Environmental Protection Agency, which supervises both the water boards and DTSC, announced follows:

"Controlling pollution in communities with high rates of respiratory disease and multiple environmental burdens remains a priority for CalEPA – especially given recent studies that suggest a correlation between these factors and COVID-19 susceptibility. Accordingly, CalEPA will continue to respond, investigate, and – when necessary – take action on complaints related to environmental non-compliance. CalEPA will also fill any enforcement gaps left by the U.S. EPA’s decision to reduce environmental oversight. We will also maintain our capacity to respond to emergencies. The ongoing clean-up of contaminated sites will be prioritized to abate or prevent an imminent threat to public health or the environment, while ensuring worker safety."

This statement from Cal-EPA does allow that there may be exceptional circumstances warranting relief (such as a delay in meeting deadlines), but that the request must be addressed to the CalEPA, Regional Board or DTSC official supervising the regulated entity and be as specific as possible as to why the regulated entity cannot fulfill its responsibilities.

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California has a State Water Resources Control Board and nine Regional Water Quality Control Boards, which among other things police the groundwaters 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, found at http://www.waterboards.ca.gov/resources/covid-19_updates/index.html, 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.

However, it appears that federal EPA will exercise a good deal of enforcement discretion, affording regulated business leeway, as reflected in a memorandum issued by the agency on March 26, 2020:

"The EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic, if regulated entities take the steps applicable to their situations, as set forth in this policy. For noncompliance that occurs during the period of time that this temporary policy is in effect, and that results from the COVID-19 pandemic, this policy will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy."  

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    The EPA has published a list of disinfectants that my be useful against the coronavirus.  See http://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2.