California and Federal Environmental Agencies Tackle COVID-19 Differently

We mentioned that California’s Regional Water Quality Control Boards and federal Environmental Protection Agency (EPA) were taking, respectively, a “harder” and “softer” line in terms of enforcement of regulations and requirements during the COVID-19 pandemic (see:  No Relief from Agency Orders During Coronavirus Crisis). 

We also noted that, while the Department of Toxics Substances Control (DTSC) had not yet issued an official position, it was expected that the department would follow the Regional Board’s “hard-line” position.

Recently, the California Environmental Protection Agency (CalEPA), which supervises both the state water boards and DTSC, announced:

“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 CalEPA 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.

U.S. Environmental Protection Agency Efforts

While California agencies continue to enforce current regulations in an effort to reduce risk of contracting COVID-19 in locales where pollution may induce respiratory concerns, the federal agency is ramping up research rather than enforcement.

“EPA’s world-class researchers are building on their already expansive body of knowledge to help mitigate the environmental and public health impacts from COVID-19,” said EPA Administrator Andrew Wheeler. “Our scientists have identified a number of research areas to focus on to further help combat and diminish the spread of COVID-19 including environmental cleanup and disinfection techniques, virus behavior in wastewater and the air, and procedures for disinfecting personal protective equipment.”

The research is partially funded through the Coronavirus Aid, Relief, and Economic Security Act (CARES) and has three primary areas of focus:

• Environmental Cleanup and Disinfection, particularly regarding chemical agents and devices to sterilize office buildings, schools, and other public places.
• Wastewater Virus Detection, as it sounds, focuses on whether the novel coronavirus can live in wastewater, or if it is still infectious in that medium.
• Salivary Antibody Assay Development, to advance noninvasive antibody tests.

In addition to research, the federal EPA has been keeping a watch on disinfectant use to combat the novel coronavirus. To that end, the agency has compiled List N:  Disinfectants for Use Against SARS-CoV-2 (the virus that causes COVID-19), which consists of approximately 400 products that meet the EPA’s criteria. Even though they have not been tested specifically against SARS-CoV-2, the EPA anticipate these items will: 

• Demonstrate efficacy (e.g. effectiveness) against a harder to kill virus; or
• Demonstrate efficacy against another type of human coronavirus similar to SARS-CoV-2

EPA states with respect to the List-N products: “All surface disinfectants on List N can be used to kill viruses on surfaces such as counters and doorknobs.”

In addition to approving various products for fighting the virus, EPA is also working with the U.S. Customs and Border Protection (CBP) to stop unauthorized products from hitting the market.

Recently the EPA and CBP disallowed shipments of a product called “Virus Shut Out” to ports in Los Angeles and San Francisco – and this is only one of thousands of retail items – that manufacturers try to send to American consumers daily. Products like these seized by the EPA and CBP have not been fully tested for safety or effectiveness, and/or may violate state or federal environmental laws.

All in all, the battle against COVID-19 from an environmental law perspective, seems to be happening on two fronts: states like California choose to enforce current regulations to protect those most at risk in polluted neighborhoods from the virus, while the federal agencies are taking initiatives to redirect their efforts against the virus itself.   

Stephen T. Holzer and Steven L. Feldman are environmental and business litigation attorneys.

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.