COVID-19: Impacts on Environmental Compliance, Inspections, and Enforcement (Updated 05/7/2020)
The disruption caused by the COVID-19 pandemic has upended nearly every segment of the economy and government, including environmental compliance and regulation. As a result, state and federal regulatory agencies are adjusting their compliance and enforcement efforts in the face of public health needs.
As the economic and regulatory landscapes shift due to COVID-19, it is critical to consider how your business engages with state and federal regulators to ensure permit compliance, meet deadlines and reporting requirements, or navigate permitting processes. The Washington Department of Ecology (Ecology) and the Oregon Department of Environmental Quality (DEQ) have each published statements regarding how COVID-19 is impacting their regulatory work. This guidance is being updated frequently, so we encourage you to visit each agency’s COVID-19 webpage (links included below for reference). Below are a few key takeaways:
- Ecology is conducting field work and field inspections that can be performed in accordance with the Governor’s Stay Home, Stay Healthy order. Ecology will prioritize inspections for essential businesses based on the potential for environmental harm.
- Ecology has not waived any state environmental permit requirements. However, Ecology states it will exercise reasonable discretion when deciding to pursue potential violations that may be linked to the COVID-19 pandemic. Regulated entities are encouraged to document the types of disruptions that COVID-19 has caused for operations, such as staffing and service shortages, disposal schedules, etc.
- Ecology cannot suspend National Pollutant Discharge Elimination System (NPDES) or State Waste Discharge permit requirements. However, Ecology issued a statement that when samples or lab results for discharge monitoring report reporting cannot be retrieved, the new DMR code DD should be used in place of data that is missed. It is important to be in touch with your Ecology permit contact.
- Ecology regional and field office staff are only available by phone or email. Offices are unavailable for walk-in service.
- The attorneys within the Attorney Generals’ office are also working remotely.
- Public meetings and events are being conducted online and/or telephonically if permitted by rule or statute.
- Public comments on environmental permitting and regulatory decisions are still occurring. Public comments are being accepted online, via email, and by mail.
- The Environmental and Land Use Hearings Office has warned of potential delays in issuing orders and the potential to postpone conferences and in-person hearings. It has relaxed the requirements for online filing to make it easier for litigants without access to printing.
- DEQ has announced it will exercise reasonable enforcement discretion in making decisions regarding violations that occurred on or after March 16, 2020, caused by COVID-19 pandemic-related disruptions.
- DEQ is requesting that all facilities document the impact of COVID-19 disruptions on their facilities and explain how the disruptions caused the non-compliance. This includes documenting the nature and dates of the noncompliance, how COVID-19 caused the noncompliance (i.e., specific staffing and service shortages, availability of pollution control equipment, disposal schedules, etc.), and the decisions and actions taken in response and to come back into compliance.
- While DEQ has not authorized any kind of violation of permits, licenses, or certifications, it has established that the following should be compliance priorities for facility operations:
- Operating in a manner that protects public health and the environment, including safe operation of the facility;
- Fully operating all installed pollution control equipment and treatment measures to reduce pollution;
- Assuring proper facility operation;
- Monitoring, testing, and reporting to demonstrate compliance with specific pollutant limits in your permit;
- Monitoring, testing, and reporting to demonstrate compliance with all other requirements.
- DEQ cannot waive NPDES permit requirements; however, if monitoring and sampling is interrupted, DEQ has a new no data indicator code—NODI Code Z—that it recommends using with the comment “COVID-19” and a description of the cause of the interruption. It is important to be in touch with your DEQ permit contact.
- DEQ will conduct inspections necessary to prevent immediate harm to public health or the environment, but may delay inspections that do not present an immediate risk.
- Until at least April 14th, DEQ has suspended inspections of wastewater treatment facilities and industrial pretreatment systems if domestic waste is included or the facility is in close proximity to a wastewater lagoon.
- DEQ will offer in-person public services by appointment only.
- The Office of Administrative Hearings (OAH) is scheduling all hearings through May 31st to be held by phone. In-person hearings that are already scheduled can be converted to phone or postponed by request. For hearings legally required to be in-person and that cannot be delayed, OAH will make every effort to conduct the hearing as scheduled.
U.S. Environmental Protection Agency COVID-19 Memo
The U.S. Environmental Protection Agency (EPA) issued a Temporary Policy that encourages all regulated entities to comply with their environmental compliance obligations and to document instances of noncompliance caused by COVID-19. Particularly, the EPA encourages documenting decisions taken in response to the noncompliance, best efforts made to comply, and steps taken to come into compliance as soon as possible. However, the Temporary Policy states it does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations. This is contingent upon the EPA agreeing that COVID-19 was the cause of noncompliance and the entity providing supporting documentation to the EPA. The EPA’s policy applies retroactively beginning on March 13, 2020. EPA also released a temporary Reporting Advisory recommending that if an NPDES permittee is missing data because of the COVID-19 pandemic, the permittee use the EPA’s no data indicator code created for COVID-19. State regulatory agencies may take a different approach under their own authorities, and it is important to proactively communicate with your permit contact.
On April 10, 2020, EPA released Interim Guidance regarding field-work decisions at EPA-led contaminated sites. The Interim Guidance applies to sites where EPA is the lead agency, including Superfund cleanup sites, Resource Conservation and Recovery Act (RCRA) corrective action sites, Toxic Substances Control Act (TSCA) PCB cleanup sites, Oil Pollution Act spill response sites, and Underground Storage Tank Program action sites.
The Interim Guidance suggests that any field work that could materially increase the risk of COVID-19 exposures may be delayed, unless that work is necessary to prevent other health and safety emergencies. It is likely that EPA will expect parties to continue work that can be performed remotely and that does not increase the risk of COVID-19 exposure, such as drafting reports (where the data are already collected), party negotiations, and maintaining financial assurances.
The types of work that are more likely to be delayed include periodic monitoring, routine sampling, investigatory sampling, and active remediation at sites that are otherwise stable. For parties that want to continue field work notwithstanding the COVID-19 situation, the Interim Guidance directs EPA regions to take into account state directives and local health department restrictions and advisories in determining whether to allow continued work.
State and federal regulatory agencies are continuing to stress the importance of environmental compliance and reporting as a part of ongoing operations. It remains uncertain how the agencies may consider lapses in required reporting, monitoring, or compliance when the lapses are caused by COVID-19; however, at this point the agencies are not waiving compliance with permits and regulations. Accordingly, documenting instances of noncompliance, particularly those caused by COVID-19, is critical.
Schwabe’s environmental and natural resource attorneys are closely monitoring these developments and can help you navigate this evolving regulatory landscape. To see the latest updates, please visit Schwabe’s COVID-19 resource page.
- Lindsay ThaneAssociate
- Elizabeth HowardShareholder
- David StearnsAssociate
- Ryen GodwinIndustry Group Leader
- Connie Sue MartinIndustry Group Leader
- Carson BowlerShareholder
- Brien FlanaganShareholder