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
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.
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.
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
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.
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
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.
Gov. Jared Polis issued a
stay-at-home order effective March 26 through April 11 unless rescinded or modified by further
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
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
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
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
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.
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
As of this update, Georgia’s statewide
stay-at-home order applies only to a select group, including the medically fragile. However,
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
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.
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
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.
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.
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
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
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
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
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
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.
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.
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.
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.”
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
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.
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
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
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.
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.
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
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
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
Oregon DEQ “requests that all regulated entities do everything possible to
maintain the safe and environmentally protective operation of their
. 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
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
email@example.com. 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
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
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 Gov. Greg Abbott issued a disaster proclamation on March 13, and a
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
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
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
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.”
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
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.
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’
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
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
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]
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 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
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
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’
McGuireWoods has published additional thought leadership related to how
companies across various industries can address crucial
COVID-19-related business and legal issues .