State Environmental Enforcement Policies During COVID-19 and Response to EPA “Discretion” Policy

April 2, 2020

On March 26, 2020, the U.S. Environmental Protection Agency (EPA) announced it may ease enforcement of environmental legal obligations during the COVID-19 national emergency. Though some incorrectly interpreted this announcement as a “get-out-of-jail-free” card to permit holders, the EPA’s temporary COVID-19 pandemic policy applies only to a narrow set of circumstances, and even in those cases, the policy offers no guarantee that harsh penalties will be withheld. As discussed in McGuireWoods’ prior alert, permit holders should not reduce their efforts to maintain environmental compliance and, in fact, should affirmatively convey to their staff and contractors the limited nature of this EPA policy.

In its COVID-19 policy, the EPA encouraged states to “take into account the safety and health of their inspectors and facility personnel and use discretion when making decisions to conduct routine inspections.” As states maintain both their own environmental programs and authorities, as well as federally delegated ones, many states have adopted policies regarding the application of enforcement discretion during the pandemic. They range from continued strict compliance with environmental requirements, to case-by-case relaxation (where relaxation can be justified), to broader relaxation in situations where the COVID-19 virus interferes with compliance. The sections below address many states’ policies, including their reactions to the EPA’s COVID-19 policy.

Alabama
Arizona
California
Colorado
District of Columbia
Florida
Georgia
Idaho
Illinois
Louisiana
Maryland
Montana
Nevada
New Jersey
New Mexico
New York
North Carolina
Pennsylvania
Ohio
Oregon
South Carolina
Tennessee
Texas
Utah
Virginia
Washington
West Virginia
Wyoming

 

Alabama

On March 27, the Alabama Department of Public Health issued a statewide stay-at-home order closing non-essential businesses and prohibiting non-work-related gatherings of more than 10 people. The Alabama Department of Environmental Management (ADEM) has not announced any change to its operations. Gov. Kay Ivey issued a proclamation on March 13 declaring a state of emergency and, among other things, announcing the potential closing of state offices, but at this time, the governor has not ordered state offices to close.

ADEM has not announced any change to its enforcement discretion (and has continued to issue enforcement notices), and has not officially responded to EPA’s COVID-19 policy. As a result, Alabama’s environmental enforcement appears to be business as usual at this time.

Arizona

Gov. Doug Ducey issued a statewide stay-at-home order on March 23. The Arizona Department of Environmental Quality (ADEQ) has not yet closed its offices, but is prepared for its employees to begin working remotely.

In response to EPA’s COVID-19 policy, ADEQ announced that it “is aligning with the EPA’s memo” providing for potential enforcement leniency where compliance with certain environmental regulations is reasonably impractical as a result of the pandemic. ADEQ will directly provide further guidance about how it will implement EPA’s COVID-19 policy to the entities it regulates. However, ADEQ’s facility inspections and work to issue permits will continue uninterrupted.

California

Effective March 19, Gov. Gavin Newsom issued California Executive Order N-33-20, directing that all individuals stay at home except as needed to maintain critical infrastructure sectors. The California Environmental Protection Agency (CalEPA) has not announced a broad closure of its offices at this time.

CalEPA issued a direct response to EPA’s COVID-19 policy, stating that its enforcement authority “remains intact” in spite of the EPA memo. “CalEPA expects compliance with environmental obligations, especially where failure to follow the law creates an imminent threat or risk to public health,” said Sam Delson, the agency’s deputy director for external and legislative affairs. The agency acknowledges that some companies might need enforcement relief, but Delson said they should contact CalEPA before falling out of compliance.

The California Regional Resource Control Board (CA Water Board) has postponed non-essential file reviews and its essential file reviews are by appointment only. The CA Water Board considers compliance with board-established orders and other requirements to be included among the essential activities, essential governmental functions or comparable exceptions to stay-at-home orders. However, if there is a specific CA Water Board order or requirement that cannot be timely met because it would be inconsistent with current governmental directives or guidelines related to COVID-19, the entity responsible for compliance must notify the applicable Water Board immediately and describe:

  • the specific CA Water Board order, regulation, permit or other requirement that cannot be timely met;
  • the inconsistent COVID-19 directive or guideline;
  • an explanation of why the responsible entity cannot timely meet the CA Water Board order or requirement; and
  • any action the entity will take in lieu of complying with the specific CA Water Board order or requirement.

The CA Water Board states that its staff members will do their best to respond to such requests within 24 to 48 hours.

Colorado

Gov. Jared Polis issued a stay-at-home order effective March 26 through April 11 unless rescinded or modified by further executive order.

The Colorado Department of Public Health and Environment (CDPHE) does not appear to have stated a position on EPA’s COVID-19 policy. In a March 25 letter , CDPHE stated that it “intends that the majority of scheduled regulatory and policy activities continue as planned” despite receiving “several letters requesting that the department pause its environmental regulation and policy activities” during the outbreak. CDPHE identified the following changes to scheduled events and deadlines:

  • The administrative action hearing to consider adoption of Policy 20-1, Policy for Interpreting the Narrative Water Quality Standards for Per- and Polyfluoroalkyl Substances (PFAS) will likely be postponed until July 2020. CDPHE will recommend postponement at the Water Quality Control Commission’s (WQCC) meeting on April 13, and the WQCC has already waived the March 31 comment deadline in anticipation of postponement.
  • The WQCC extended the deadline for filing an appeal regarding the 401 certification for the Northern Integrated Supply Project from March 31 to April 15.
  • The CDPHE is delaying the request for hearing for Regulation 7, Natural Gas-fired Reciprocating Internal Combustion Engines from the AQCC’s April 16 to June to allow oil and gas operators additional time to work with the Air Pollution Control Division.
  • The CDPHE is delaying the stakeholder process regarding technologically enhanced naturally occurring radioactive material from April 1 to May 4.

The CDPHE also plans to hold all board and commission meetings and hearings via video-conference during the pandemic.

The Colorado Department of Natural Resources (DNR) and its agencies are open and available by phone or email during the outbreak. DNR’s website states that many of its employees are working from home to abide by the state and federal social distancing guidelines.

District of Columbia

On March 30, Mayor Muriel Bowser issued a stay-at-home order for the District of Columbia. This order reinforces the mayor’s direction to residents to stay at home except to perform essential activities. The District of Columbia Department of Energy & Environment (DOEE) remains operational, with most DOEE staff working remotely . DOEE’s original order planned for offices to reopen on April 1, and no update to that plan has been announced.

DOEE has not announced any change to its enforcement policies, and has not officially responded to EPA’s COVID-19 policy. DOEE has noted that its office closure and teleworking staff will have impacts on permitting and inspections, with both subject to a reduced schedule and modified service. However, DOEE’s approach to enforcement of violations appears to be unchanged at this time.

Florida

On April 1, Gov. Ron DeSantis announced the signing of a statewide stay-at-home order. Prior to that, on March 9, the governor issued Executive Order Number 20-52, which permitted state agencies to “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of that agency, if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.” The executive order also granted state agencies the authority to close state buildings and facilities. The Florida Department of Environmental Protection (DEP) has since closed to the public a number of state parks and other protected wilderness areas. DEP has also expanded telework opportunities for certain employees. However, DEP appears to remain open for business at this time.

DEP has not made a public announcement about any change in enforcement efforts, nor has it responded directly to EPA’s COVID-19 policy. As a result, expect DEP enforcement activities to continue for the immediate future.

Georgia

As of this update, Georgia’s statewide stay-at-home order applies only to a select group, including the medically fragile. However, many counties and cities have issued orders requiring their communities to stay at home, causing various businesses to close and circulating a variety of definitions of “essential” businesses that may continue to operate.

On March 13, the Georgia Environmental Protection Division (EPD) began working remotely, as requested by Gov. Brian Kemp on March 12 . However, EPD offices remain open by appointment. Appointments, questions and concerns about the impact of COVID-19 are managed through its general email, askepd@dnr.ga.gov.

On March 31, EPD issued a formal response to EPA’s COVID-19 policy, stating that EPD will follow the guidance and procedures set by EPA for both federal permits and state-only permits, and will not issue separate guidance. That guidance includes evaluating enforcement discretion for violations of certain monitoring, testing, reporting or training requirements. EPD did note that it retains the right to adjust the termination date of the memo policy in regard to enforcement, but it will post a notice to this effect on the website seven days before the date of termination.

Idaho

On March 25, Gov. Brad Little issued an emergency proclamation in conjunction with an order issued by the director of the Department of Health imposing a statewide stay-at-home order for all Idaho residents. The Idaho Department of Environmental Quality (DEQ) remains open for business by appointment only.

Idaho DEQ appears to be falling in line with the thinking behind EPA’s COVID-19 policy and said it is “working with regulated entities to provide flexibility where possible” amid the pandemic, including “temporarily limiting some routine activities.” A notice on Idaho DEQ’s website currently states, “Every effort will be made to avoid unnecessarily disrupting regulated facilities while they respond to COVID-19.”

In addition, Idaho DEQ has published a series of guidance documents to assist regulated entities in certain compliance areas in responding to COVID-19. The guidance recognizes that compliance in certain regulated areas such as wastewater, hazardous waste and underground storage tanks may become impracticable due to COVID-19, but generally encourages regulated parties to document any noncompliance, how COVID-19 was the cause of the noncompliance, and their best efforts to comply. Communicating with Idaho DEQ regarding any such noncompliance is the best way to ensure Idaho DEQ recognizes the extraordinary circumstances leading to noncompliance.

Illinois

On March 20, Gov. J. B. Pritzker issued Executive Order No. 2020-10, ordering all individuals in Illinois to remain in their homes or places of residence except for specific reasons set out in the order, such as essential businesses or essential government functions. Each government body is tasked with identifying its essential government functions and identifying the employees necessary for such functions. The Illinois EPA (IEPA) has officially suspended only one program, the vehicle emission testing program, which was suspended at least through April 7.

IEPA has not made a public announcement about any change in enforcement efforts, or responded directly to EPA’s COVID-19 policy. As a result, expect IEPA enforcement activities to continue for the immediate future.

Louisiana

Gov. John Bel Edwards issued a statewide stay-at-home order on March 22. The Louisiana Department of Environmental Quality (LDEQ) issued its first declaration of emergency and administrative order responding to COVID-19 on March 19, and as of a March 27 amended order, most LDEQ employees are working remotely and all state offices are closed to the public.

LDEQ has not yet responded to EPA’s COVID-19 policy or announced any changes to its enforcement discretion during the pandemic, but its current order takes a few steps to provide deadline relief to the regulated community. LDEQ will not assess any late fees for outstanding invoices beginning on March 19. LDEQ is also providing an automatic 30-day extension of certain deadlines that fall between March 19 and the date the order expires, including:

  • deadlines to conduct or report periodic monitoring or submit other reports required by permits, regulations, enforcement actions or settlement agreements; and
  • deadlines to file an application for renewal of an existing permit, provided that renewal applications are submitted no later than the expiration date of the existing permit.

However, these extensions only apply insofar as a facility does not have sufficient personnel available due to the pandemic, and they do not extend to monitoring and reporting requirements under state-administered federal programs, such as Title V permits under the Clean Air Act.

The deadline for submitting Title V Semiannual Monitoring and Deviation reports and Annual Compliance Certifications – usually March 31 – has separately been extended to May 1.

Finally, to the extent any reports must be submitted to the EPA, LDEQ notes that those reports should be submitted in accordance with EPA’s COVID-19 policy.

Maryland

Gov. Larry Hogan has issued a series of orders culminating in a March 30 stay-at-home order covering all non-essential businesses and activities. The Maryland Department of the Environment (MDE) has closed its offices except for pre-established appointments, and all non-essential staff are currently teleworking.

MDE has not announced any change in its enforcement policies at this time, or made an official response to EPA’s COVID-19 policy. Although there is no change in Maryland’s enforcement policy, on March 12, Gov. Hogan issued a separate executive order related to licenses, permits, registrations and other authorizations that may be expiring or up for renewal during the state of emergency that was declared in Maryland on March 5. The executive order immediately grants a grace period extending the expiration of permits and licenses until 30 days after the state of emergency is terminated.

Montana

Gov. Steve Bullock issued a stay-at-home order effective March 28 to April 10. The Montana Department of Environmental Quality (DEQ) has closed its offices to the public, and is modifying business practices including increased remote working for its employees.

At this time, Montana DEQ has not issued a formal policy on compliance enforcement, and has not responded to EPA’s COVID-19 policy. However, the Montana DEQ Solid Waste Program has suspended inspections until further notice.

Nevada

On March 24, Gov. Steve Sisolak signed an emergency stay-at-home order that will remain in effect until April 16, unless extended. The Nevada Department of Conservation & Natural Resources (NDCNR) has closed its offices to the public and many of its employees are working remotely, but “controlled and limited access … may be arranged for certain qualifying services on a case-by-case basis” by contacting the appropriate NDCNR Division or Program. NDCNR will provide updates on its website.

NDCNR has not issued a formal policy with any changes to compliance enforcement, and has not directly responded to EPA’s COVID-19 policy. NDCNR’s stated position is currently that it “will continue to carry out regular business operations … via agency-wide telecommunication” amid the outbreak. Based on this, NDCNR’s Division of Environmental Protection (NDEP) is expected to proceed with regular enforcement activities.

New Jersey

On March 21, Gov. Phil Murphy signed an executive order directing all residents to stay at home until further notice. The New Jersey Department of Environmental Protection (DEP) remains open but most employees are working remotely, and DEP encourages reaching its staff via email.

DEP has not yet issued any guidance easing its enforcement policy for New Jersey or federally delegated programs, and has not responded directly to EPA’s COVID-19 policy. However, on March 26, DEP issued guidance for public water systems and wastewater monitoring, licensed operator, and certified laboratory issues due to the COVID-19 pandemic. That guidance notes that DEP “will continue to exercise enforcement discretion to provide the necessary flexibility to allow the Water and Wastewater Sector to continue to provide essential services … despite staffing limitations and other needs related to measures intended to reduce the rate of community spread of COVID-19.”

New Mexico

Effective March 24, the New Mexico stay-at-home order issued by Gov. Michelle Lujan Grisham closes all non-essential businesses and requires employees of those businesses to work from home if they can. New Mexico’s Environment Department (NMED) has not indicated that the outbreak will alter its regulatory activity. NMED has not stated a position on EPA’s COVID-19 policy.

Resources providing general guidance on COVID-19 related to drinking water, restaurants and employers are available on the New Mexico Environment Department’s website.

New York

New York is subject to a stay-at-home order issued by Gov. Andrew Cuomo on March 20. The New York Department of Environmental Conservation (NYDEC) has temporarily closed its regional offices to the public. NYDEC staff are working remotely. Appointments are available upon request.

The NYDEC has not relaxed enforcement discretion in response to the pandemic. To the contrary, the NYDEC tweeted the following response, criticizing EPA’s COVID-19 policy: “Today's EPA rollback will result in more air pollution in New York's communities, more respiratory illnesses, and more New Yorkers dying because of increased air pollution. New York State will continue to fight EPA in court and work to implement the stringent California standards allowed by the federal Clean Air Act. The COVID-19 public health crisis makes it clear that policy must follow sound science.”

However, the DEC is allowing expedited project review and issuance of an emergency authorization in certain circumstances.

North Carolina

On March 27, Gov. Roy Cooper issued Executive Order No. 121, a stay-at-home order effective March 30 for a period of 30 days. The North Carolina Department of Environmental Quality (NC DEQ) has adjusted operations in response to the COVID-19 pandemic. Many of its employees are working remotely or on staggered shifts. All NC DEQ office locations are limiting public access to appointments only. NC DEQ has not yet updated its appointment policy in response to the stay-at-home order. Schedules for actions requiring public comment – such as permits and consent orders – have been extended. Additionally, public meetings have been postponed or will occur by teleconference, when possible.

On March 30, NC DEQ issued a press release regarding its enforcement authority during the COVID-19 pandemic. NC DEQ stated that it “will work with regulated entities to ensure they remain in compliance and in instances of non-compliance, pursue enforcement actions on a case-by-case basis.” NC DEQ has not publicly commented on EPA’s COVID-19 policy.

Pennsylvania

Pennsylvania is subject to an order closing “non-life sustaining” businesses and many counties are subject to a “stay-at-home” order . The Pennsylvania Department of Environmental Protection (PADEP) closed its offices on March 16. PADEP employees are working remotely.

On March 31, in apparent response to EPA’s COVID-19 policy, PADEP announced that Gov. Tom Wolf was temporarily suspending regulatory requirements and permit conditions “where strict compliance will prevent, hinder or delay necessary action in coping with the COVID-19 emergency.” To request a suspension, PADEP provided a form to be completed and submitted to RA-EPCOVID19SuspReq@pa.gov. PADEP’s announcement noted that while PADEP will review requests made under federal programs delegated to Pennsylvania, PADEP lacks authority to suspend federal requirements. In response to inquiries about EPA’s COVID-19 policy, PADEP spokesperson Neil Shader acknowledged that PADEP was working on a waiver policy.

PADEP is prioritizing field inspections it considers critical to public health and safety. PADEP permit reviewers are continuing to process applications. However, PADEP has suspended the timeframes provided by its Policy for Implementing the Pennsylvania Department of Environmental Protection Permit Review Process and Decision Guarantee and has advised that applicants may experience delays.

Ohio

The director of Ohio’s Department of Health issued a stay at home order on March 22.

On March 23, the Ohio Environmental Protection Agency (OEPA) closed its offices and its employees began working remotely. Operators and permittees remain obligated to comply with permits and regulatory requirements. However, OEPA has established an email account, EPA.COVID-19REGFLEX@epa.ohio.gov, to receive requests to the OEPA director for “regulatory flexibility” where an “unavoidable noncompliance situation, directly due to impact from the coronavirus” has occurred. The email request must include:

  • the specific regulatory or permit requirement which cannot be met;
  • a concise statement describing the circumstances preventing compliance;
  • the anticipated duration of time that the noncompliance will persist;
  • the mitigative measures that will be taken to protect public health and the environment during the need for enforcement discretion; and
  • a central point of contact for the regulated entity, including an email address and phone number.

If OEPA grants the request, the permittee or operator is required to maintain documentation related to the noncompliance and the entity’s efforts to comply.

OEPA’s enforcement discretion policy pre-dates EPA’s COVID-19 policy and it appears Ohio has not publicly commented on it.

With regard to permitting, the OEPA has advised that it has increasingly limited ability to accept deliveries and encourages the submission of applications and documents electronically.

The Ohio Department of Natural Resources (ODNR), which regulates the mining and oil and gas industries, closed its physical offices and many of its employees are working remotely. Per its website, ODNR is continuing to enforce laws and to conduct inspections as normal.

Oregon

Effective March 23 until terminated by Gov. Kate Brown, Oregon Executive Order No. 20-12 prohibits non-essential activities if a distance of at least six feet cannot be maintained, prohibits individuals from patronizing non-essential businesses, and includes a carve-out for indoor and outdoor malls that may provide carryout food, healthcare, medical, pharmaceutical or pet store services.

The Oregon Department of Environmental Quality (DEQ) is currently open to the public by appointment only. Oregon DEQ's administrative offices and online functions remain open.

All applicable Oregon DEQ requirements remain in effect. However, it will exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions. Oregon DEQ guidance largely mirrors EPA’s COVID-19 policy, but cautions that it does not serve as authorization of any kind to violate any applicable requirement of law, including statute, rule, permit condition or other obligation.

Oregon DEQ requests that regulated entities document the pandemic-related disruptions to their operations. In addition, DEQ requests that regulated entities justify how disruptions to operations have caused or may cause noncompliance.

Oregon DEQ “requests that all regulated entities do everything possible to maintain the safe and environmentally protective operation of their facilities . Priorities for operation include:

  • To fully operate all installed pollution control equipment and treatment measures to reduce pollution;
  • To implement best management practices;
  • To assure proper facility operation or delivery of service;
  • To monitor, test, and report to demonstrate compliance with specific pollutant limits in your permit, license, or certification; including effluent limits, emission limits, and disposal volumes; and
  • To monitor, test, and report to demonstrate compliance with all other requirements.”
South Carolina

South Carolina Gov. Henry McMaster issued an executive order requiring, among other things, all non-essential state employees to stay home from work, effective March 20.

In apparent response to EPA’s COVID-19 policy, the South Carolina Department of Health (DHEC) Office of Environmental Affairs announced that it was “prepared to address” situations in which “non-compliance is unavoidable directly due to impact from COVID-19 and/or related legal restrictions (federal/state/local declarations or orders).” Requests for “regulatory relief consideration” are to be directed to environmentalcompliance@dhec.sc.gov. Requests must include the following information:

  • Facility/entity identifying and descriptive information (e.g., location, permit number, etc.) or identification of representative association and extent of request (i.e, for one entity or one or several sectors)
  • Contact information for authorized representative
  • Situation or issue for which submittal is made
  • Whether situation or issue occurred or is anticipated to occur
  • Anticipated needed duration for relief
  • Regulatory analysis including rule and/or permit provision citation for which relief is being sought

Additionally, automatic extensions have been provided for emissions inventories (to April 30); on-site implementation logs (30 days); expiring asbestos personnel licenses; wastewater permitting (30 days); and DMRs (to May 31).

Tennessee

The Tennessee Department of Environment and Conservation (TDEC) has adjusted its operations and is exercising discretion, when possible, to respond to the COVID-19 pandemic. To protect staff and citizens, TDEC has implemented an appointment-only model for its central and regional offices.

TDEC has also issued guidance and resources that will apply during the COVID-19 pandemic. Regarding inspections and enforcement, TDEC notes that many of its personnel are working remotely and are unable to perform site inspections and other routine fieldwork because travel is restricted. Monitoring visits and non-emergency complaint investigations have also been deferred until they can be safely performed. Despite these challenges, TDEC intends to work with the regulated community to monitor compliance remotely. TDEC has stated, “Where we need to make modifications and adjustments in order to be responsive to authorities, directives and good judgment required by these extraordinary times, TDEC’s environmental programs will seek to do that.”

By Gov. Bill Lee’s executive order on March 24, Tennessee’s Department of Environment and Conservation (TDEC) has suspended the requirements of inspection and testing of light-duty motor vehicles in Tennessee and the requirement for a light-duty motor vehicle owner to submit a certificate of compliance relative to a vehicle’s registration in all cases where required between March 12 and May 18.

TDEC is evaluating the need for and ability to exercise discretion regarding any license, permit or certification that would expire prior to April 30.

TDEC has also indicated that it may extend deadlines for public comment periods that are set to expire before April 30. TDEC will be updating its website to reflect modifications to public comment periods.

TDEC has also adjusted its appeals process to allow for electronic filing of appeals, although paper filings are still allowed but discouraged. Appeals and any attachments can now be emailed to TDEC.Appeals@tn.gov. If an appeal is filed electronically, then a separate paper copy is not required to be filed. When appeals are received, the TDEC Office of General Counsel staff will date-stamp the appeal, confirm receipt and forward it to the appropriate division staff.

Texas

Texas Gov. Greg Abbott issued a disaster proclamation on March 13, and a follow-up executive order on March 31 requires all persons to “minimize in-person contact with people who are not in the same household” except for conducting essential activities. The Texas Commission on Environmental Quality (TCEQ) closed its offices to the public on March 23, and its employees are working remotely.

TCEQ has issued a policy that it will exercise enforcement discretion for certain reporting requirements by regulated entities. For now, that enforcement discretion is limited to extending certain reporting deadlines that fall between March 31 and April 30, so that any such reports submitted before April 30 will be considered timely. The reports covered under this extension are:

  • Point source emissions inventories;
  • Stormwater general permit reports; and
  • Mass Emissions Cap and Trade (MECT) and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) annual compliance reports.

Additionally, although TCEQ has not published guidance on this subject, TCEQ notified regulated entities that it would also be exercising enforcement discretion for other events of noncompliance that are unavoidable directly due to impact from COVID-19. Regulated entities requesting enforcement discretion on that basis should email OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov and provide the following:

  • A concise statement supporting request for enforcement discretion;
  • The anticipated duration of the need for enforcement discretion; and
  • Citation of the rule/permit provision for which enforcement discretion is requested.

TCEQ also noted that regulated entities must maintain records documenting all activities related to the noncompliance, including details of the regulated entity’s “best efforts to comply.”

Utah

On March 27, Gov. Gary Herbert issued a stay-at-home directive effective until April 13. The Utah Department of Environmental Quality (Utah DEQ) is limiting person-to-person contact in its offices and asks that permit holders contact Utah DEQ by telephone or email to conduct business.

Utah DEQ stated in a press release that it will adhere to the EPA’s pandemic policy and “will work with regulated communities on a case-by-case basis to determine reasonable exemptions to environmental rules.” In keeping with the EPA policy, enforcement of regulations that directly affect human health will take priority in Utah. “We are living in unprecedented times. As an agency, our mission to safeguard and protect Utah’s air, land and water has not changed,” said Utah DEQ Executive Director Scott Baird.

Virginia

On March 12, Gov. Ralph Northam issued Executive Order 51 declaring a state of emergency due to the COVID-19 outbreak. The order authorizes, among other things, state agency directors to “waive any state requirement or regulation” in order to enact emergency preparedness, response and recovery measures. Such waivers will be posted on agencies’ websites.

The Virginia Department of Environmental Quality (VDEQ) has canceled all public meetings and public hearings through April 30. It also has temporarily suspended all field work so that it may assess risks to staff, develop exposure mitigation plans, and prioritize monitoring and inspections for resumption of field work. Resumption of field work will be based on risk exposure and other safety considerations. Additionally, VDEQ has stated that there are no new requirements for handling COVID-19 contaminated waste.

On March 31, VDEQ issued a statement in response to EPA’s COVID-19 policy, which says, in part, that “[a]ll regulated entities are expected to make every effort to comply with environmental compliance obligations, adhere to permit limits, and maintain the safe and environmentally protective operation of their facilities.” VDEQ also said that the agency will consider noncompliance issues resulting from COVID-19 on a “case-by-case basis, but by no means does this crisis equal a free pass for the regulated community.”

VDEQ advises that if full compliance is not possible, permit holders should continue to act responsibly, identify and document noncompliance, note how COVID-19 was the cause of noncompliance and return to compliance as soon as possible.

Washington

Gov. Jay Inslee issued Executive Order No. 20-25, effective March 23 through April 6, ordering all people in Washington to cease leaving their homes or residences except to conduct or participate in essential activities or for employment in essential business services.

Washington’s Department of Ecology has closed all of its offices to walk-in service until April 8, with possible extensions, if needed.

The department “will exercise reasonable discretion … when deciding whether to pursue potential violations that may be linked to the current COVID-19 pandemic.” The department said “all applicable state requirements remain in effect” and it will still respond to spills, provide technical assistance, ensure permit coverage for regulated activities and enforce the laws that protect the environment throughout the current crisis. But the department acknowledged that the pandemic “may temporarily affect some of regulated entities’ ability to comply with all state requirements.”

In keeping with EPA’s COVID-19 policy, the department encouraged regulated entities to document the types of disruptions the COVID-19 pandemic has caused for operations, and contact the Department of Ecology with specific information related to the circumstance, including staffing and service shortages, disposal schedules, etc. A full breakdown of how the department’s regulatory activities are affected by the outbreak is available on its website.

West Virginia

On March 16, Gov. Jim Justice declared a state of emergency, empowering the state Department of Health and Human Resources, the Division of Homeland Security and Emergency Management, and the West Virginia National Guard to “facilitate the provision of essential emergency services to alleviate the potential impacts to the people, property, and infrastructure of West Virginia that may be caused by [the COVID-19] outbreak.”

On March 27, a day after the EPA COVID-19 policy was announced, the West Virginia Department of Environmental Protection (WVDEP) issued a statement declaring that “all rules, regulations and permitting requirements under the jurisdiction of WVDEP will remain in full effect.” The agency also said it “recognizes and acknowledges the potential compliance challenges the regulated community may face due to the COVID-19 restrictions” and stated it “is committed to working cooperatively with the regulated community to ensure environmental compliance and public safety standards are properly addressed during this pandemic.”

The WVDEP said that it “expects facilities to continue to be operated in a manner that fully protects human health and the environment,” and that such includes “continued operation and monitoring pollution control devices, record-keeping, maintenance, testing, and reporting compliance.” If permittees find certain compliance requirements “not reasonably practicable,” they should contact the agency.

Wyoming

Wyoming has no stay-at-home order in place to date.

The Wyoming Department of Environmental Quality (Wyoming DEQ) offices remain open, though some staff members are working remotely. Members of the public must make an appointment to view physical documents and records in Wyoming DEQ offices.

Wyoming DEQ “remains committed to ensuring that all department responsibilities and functions are carried out timely and within regulatory requirements” during the outbreak. Wyoming DEQ has not announced any adjustments to its enforcement discretion policies, nor does it appear to have responded to EPA’s COVID-19 policy.

To minimize social gathering, Wyoming DEQ is considering alternative formats for public hearings and meetings, including online options for public viewing.

Updates will be provided on the Wyoming DEQ website.


McGuireWoods and McGuireWoods Consulting are experienced in permitting and enforcement defense, and routinely act as agency liaison at the federal, state and local levels. We stand ready to guide you through COVID-19-related inquiries under these new EPA obligations.

For answers to questions or additional guidance on the effects of the states’ policies, contact one of the authors or your McGuireWoods contact. For more information, see McGuireWoods’ environmental practice.

McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues .

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