COVID-19 Environmental Enforcement Update
Restrictions imposed in response to the coronavirus are in some cases interfering with the ability of companies to comply with certain requirements in environmental regulations, permits, and consent decrees. For example, in locations where limitations on non-essential travel and business operations are in place, the ability of company personnel or contractors to visit sites may be constrained, preventing full compliance with environmental sampling or monitoring obligations. As discussed in our March 16 Advisory, emergency exemptions in environmental laws and force majeure provisions in consent decrees may offer relief in some circumstances. In many situations, the onus will be on individual companies to request particular relief.
While a number of agencies have thus far been responding to requests for relief on a case-by-case basis, the US Environmental Protection Agency (EPA) has issued broadly applicable guidance on how it will exercise enforcement discretion for certain noncompliance that results from the COVID-19 pandemic (see our March 27 Advisory on the temporary policy). EPA has also issued guidance for decisions regarding suspending field work at remediation sites (see our March 10 Advisory on the guidance). Some states also have issued broadly applicable no-action assurance policies. In addition, EPA and other federal and state agencies have issued other more tailored polices and guidance that describe specific regulatory relief and alternative methods of compliance during this crisis. The Arnold & Porter Environmental Practice group has been tracking these measures, and we expect that agencies will continue to issue policies and guidance concerning how they will address inabilities to comply with environmental requirements due to coronavirus-related restrictions.
This guide provides a current snapshot of key documents and other resources from EPA, several select federal agencies, and eight states. The authors of this guide are not currently tracking COVID-19-related developments in the remaining states and agencies that are not included herein. This resource is not intended to be exhaustive, so we recommend checking with an agency directly regarding its current enforcement status. We will update and maintain this information on a regular basis. Please advise us if there is additional information we could include to make this resource more useful.
Last Updated May 18, 2020
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Francesa Bochner-Brown contributed to this resource. Ms. Bochner-Brown is a graduate of Duke University School of Law and is employed at Arnold & Porter's Washington, DC office. Ms. Bochner-Brown is admitted only in California. She is not admitted to the practice of law in the District of Columbia.
Margaret Barry also contributed to this resource.
EPA, Select Federal Agencies, and State Updates
US Environmental Protection Agency
Office of Enforcement and Compliance Assurance (OECA)
- Temporary Policy regarding "COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program" (March 26, 2020) and Press Release (March 26, 2020)
- Provides that EPA will exercise enforcement discretion for certain noncompliance that occurs while the temporary policy is in effect (and retroactively to March 13, 2020) and that results from the COVID-19 pandemic.
- Specifies steps that facilities should take in order for enforcement discretion to apply, including identification and documentation of "the specific nature and dates of the noncompliance" and "how COVID-19 was the cause of the noncompliance," as well as "decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity."
- Identifies routine compliance monitoring and reporting activities that the pandemic may constrain and specifies facilities' obligations should such noncompliance with monitoring and reporting requirements occur.
- Specifies procedures for noncompliance with settlement agreement and consent decree reporting obligations and milestones.
- Prescribes actions that EPA will take in response to noncompliance that could result in "an acute risk or an imminent threat to human health or the environment," including consulting with states or tribes for authorized programs, working with facilities to minimize or prevent the threat or harm, and considering circumstances, including the COVID-19 pandemic, in determining whether enforcement is appropriate.
- Also addresses failures of air emission control, wastewater, waste treatment systems, or other facility equipment that occur while the temporary policy is in effect, as well as requirements for hazardous waste generators unable to transport waste off-site and for animal feeding operations unable to transfer animals off-site.
- Establishes monitoring priorities for public water systems.
- Does not apply to (1) any criminal violations or conditions of probation in criminal sentences; (2) activities carried out under Superfund and RCRA Corrective Action enforcement instruments; (3) imports, with respect to which EPA notes a concern regarding pesticide products claiming to address COVID-19 concerns.
- Does not apply to responsibilities to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants.
- Indicates that EPA may issue "a more tailored short-term No Action Assurance" when a facility is deemed "critical infrastructure."
- Acknowledges that states and tribes may take a different approach using their own authorities.
- Indicates that EPA will provide notice at least seven days in advance of terminating the temporary policy.
- EPA press release: EPA Sends Letter to All Members of Congress to Correct the Record on the Temporary Enforcement Policy (April 2, 2020)
- EPA letters to Congress regarding Temporary Enforcement Policy (April 2, 2020)
- EPA FAQ About the Temporary COVID-19 Enforcement Policy
- Temporary Advisory for National Pollutant Discharge Elimination System (NPDES) Reporting in Response to COVID-19 Pandemic (March 31, 2020)
- Provides further direction on implementation of OECA's March 26 temporary policy as it relates to NPDES reporting requirements tracked in EPA's Integrated Compliance Information System for the NPDES program (ICIS-NPDES).
- Provides that in cases where permittees can report electronically but are unable to sample, monitor, or obtain laboratory results due to COVID-19, they should use a No Data Indicator (NODI) code to indicate in the system that the data are missing due to COVID-19 and include a "COVID-19" comment on their discharge monitoring report form. Permittees should use either a NODI code created specifically for COVID-19 or another infrequently used NODI code.
- Directs permittees who cannot report electronically to request a temporary emergency waiver from electronic reporting and specifies steps permittees should take if they are unable to report electronically and cannot request a waiver.
- Provides that the temporary advisory will remain in effect while OECA's March 26 temporary policy is in effect.
- Revised No Action Assurance for Use of Emergency Generators by Specific Companies Operating in Puerto Rico (May 18, 2020)
- For specific facilities engaged in production of pharmaceuticals and/or medical supplies, advises that EPA will not enforce violations of engine operating hour limits by emergency generators so long as specified conditions are met.
Office of Land & Emergency Management (OLEM)
- Indicates that decisions on continuing, reducing, or pausing field work—including in response to requests from outside parties—will be made on a case-by-case basis and in consultation with other EPA offices, as appropriate. Modifications to a party's performance obligations under enforcement instruments will also be made on a case-by-case basis.
- Applies to response actions related to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of or responsibility for the work being performed under authorities including the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank (UST) program.
- Identifies three categories of factors to consider for site-specific work decisions: (1) whether failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions; (2) whether maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months (e.g., vapor intrustion investigations, residential site work with current exposures to residents, drinking water work); and (3) whether work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work.
- Indicates that EPA Regions should review and, if necessary, modify health and safety plans (HASPs) for sites to account for COVID-19 guidelines from the Centers for Disease Control and other entities.
- Emphasizes the importance of regular communication with EPA regarding the status of sites.
- Interim Final Rule on Continuous Emission Monitoring; Quality-Assurance Requirements During the COVID-19 National Emergency (signed on April 17, 2020)
- Adds a new Section 75.68 to EPA regulations that temporarily amends emission monitoring and reporting regulations for the Acid Rain Program, Cross-State Air Pollution Rule (CSAPR), and the NOX SIP Call.
- Allows continued reporting of data from a continuous emission monitoring system or fuel flowmeter where the failure to complete certain required quality-assurance tests on the equipment is due to travel, plant access, or other safety restrictions implemented to address the COVID-19 national emergency and where the owner or operator creates and maintains records and notification is submitted to EPA.
- Important Links:
- Questions & Answers
- EPA website with links to notification templates
- List of facilities that notified EPA of delayed quality assurance activities
- May 1, 2020 Fuel Waiver Concerning Summer Gasoline (March 27, 2020) and related Press Release (March 27, 2020)
- Determines that an "extreme and unusual fuel [ ] supply circumstance" exists as a result of COVID-19 and that it is in the public interest to waive summer gasoline requirements for terminal owners, terminal operators, distributors, carriers, retailers, and wholesale purchaser-consumers.
- Provides that waiver is effective May 1, 2020 and continues through May 20, 2020.
- Announcement that EPA does not intend to revisit or rescind any previously granted small refinery exemptions issued for prior compliance years (Press Release March 27, 2020).
- Announcement that EPA will extend March 31 deadline for small refineries to comply with 2019 biofuel-blending requirements (Press Release March 27, 2020)
Office of Chemical Safety and Pollution Prevention
- Allows changes through notification without EPA approval for adding additional registered sources of active ingredients to a formulation and setting up an approved pesticide manufacturing establishment.
- Temporary Amendment of Pesticide Registration (PR) Notice 98-10 (March 30, 2020)
- Applies to registrants of pesticide disinfectant products on List N: Disinfectants for Use Against SARS-CoV-2.
- Allows registrants to use any source of specified active ingredients without EPA approval of an amendment of the pesticide registration provided that the resulting formulation is chemically similar to the current source.
- Indicates that the specified active ingredients (ethanol, hydrochloric acid, sodium hypochlorite, hydrogen peroxide, hypochlorous acid, citric acid, L-lactic acid, and glycolic acid) are "widely available and easily-manufactured commodity chemical[s]" for which the value of EPA review is "diminished."
- Indicates that "EPA will assess the continued need for and scope of this temporary amendment to PR Notice 98-10 on a regular basis and will update it if the EPA determines modifications are necessary," with at least seven days-notice before any termination of the temporary amendment.
- Establishes procedure for registrants to submit notifications of intent to use unregistered sources.
- Announcement that EPA will allow manufacturers to obtain commodity inert ingredients for disinfectants from different suppliers without prior notification to EPA (Press Release March 26, 2020) and announcement of additional chemicals to the list of commodity inert ingredients (Press Release April 14, 2020)
- Assistant Administrator Dunn indicated in remarks to the American Bar Association that some disinfectant policies instituted during the public health emergency might stay in effect after the crisis subsides. (Bloomberg April 22, 2020)
US Department of Justice
- Memorandum from the Executive Office for United States Attorneys regarding Temporary Suspension of Affirmative Civil Debt Collection and Enforcement Activities During the COVID-19 Pandemic (March 31, 2020) and Amendment/Clarification to Memorandum (April 13, 2020)
- Suspends collection of civil debts through at least May 31, 2020.
- EPA has stated that with respect to consent decrees entered into with EPA and DOJ, EPA will coordinate with DOJ "to exercise enforcement discretion with regard to stipulated penalties" for routine compliance obligations.
- Important Links:
Select Other Federal Agencies
Pipeline and Hazardous Materials Safety Administration (PHMSA)
- Notice of Enforcement Discretion Concerning Requirements for Periodic Tests and Inspections of Cargo Tanks and Portable Tanks Within the State of Alaska (May 8, 2020)
- Advises that PHMSA and the Federal Motor Carrier Safety Administration will not take enforcement action against persons operating a cargo tank motor vehicle (CTMV) or portable tank in Alaska if the CTMV or portable tank is not more than 90 days beyond its testing or inspection date.
- Notice of Enforcement Discretion to Gas Pipeline Operators Affected by the Coronavirus (COVID-19) Outbreak (April 22, 2020)
- Advises that PHMSA does not intend to take enforcement action relative to the July 1, 2020 compliance deadline requirements in new gas pipeline safety regulations issued on October 1, 2019, if a regulated entity fails to meet such a requirement by December 31, 2020, for reasons attributable to the COVID-19 national emergency.
- Provides that PHMSA will not take enforcement action under its Hazardous Materials Regulations against any carrier transporting sanitizing and disinfecting materials on a motor vehicle for the purposes of protecting the health and safety of the carrier's employees provided that criteria specified in the notice are met.
- Provides that the notice is effective while the Department of Health and Human Services January 31, 2020 public health emergency determination is in effect, or 90 days from the date of issuance of this notice, whichever is sooner.
- Notice of Enforcement Discretion Regarding Continued Manufacturing of Performance Oriented Packaging (POP) Designs That Have Exceeded Their Periodic Retesting Date (April 20, 2020)
- Provides that PHMSA will not take enforcement action under its Hazardous Materials Regulations against any company that continues to manufacture a United Nations Performance Oriented Packaging conforming to a tested design that is not more than 90 days beyond its periodic retest date.
- Does not grant relief from production testing.
- Specifies packaging types eligible for relief.
- Requires that manufacturers document the reasons why compliance is not possible prior to manufacturing packagings which are not more than 90 days beyond the required periodic retesting date.
- Provides that the notice is effective while the Department of Health and Human Services' January 31, 2020 public health emergency determination is in effect, or 90 days from the date of issuance of this notice, whichever is sooner.
- Notice Highlighting Existing Options Related to Hazardous Materials Shipping Papers and Social Distancing During the COVID-19 Public Health Emergency (April 10, 2020)
- Recommends options for exchanging shipping papers between shippers and carriers while maintaining social distancing.
- Notice of Enforcement Discretion Regarding Cylinders that Have Exceeded Their Periodic Requalification Test Date (April 6, 2020)
- Provides that the Federal Motor Carrier Safety Administration and PHMSA will exercise enforcement discretion for filling and offering of cylinders containing Division 2.2 gases when such cylinders are no more than 12 months past their periodic requalification test date.
- Applies only to transportation by motor vehicles (not to air, vessel, or railroad transport).
- Effective while the COVID-19 public health emergency exists or 90 days from date of issuance, whichever is sooner.
- Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19): Notice of Enforcement Discretion (April 2, 2020) and Revised Policy (April 10, 2020)
- Provides that PHMSA will provide temporary relief from Hazardous Materials Regulations requirements for highway transportation of hand sanitizer produced under the Food and Drug Administration's temporary policy for preparation of alcohol-based hand sanitizer products during the COVID-19 emergency.
- Lists hazardous materials emergency special permits issued during the COVID-19 public health emergency for exemptions from specific requirements of the Hazardous Materials Regulations.
- Announces a temporary halt on enforcement actions against shippers and carriers that are unable to comply with training requirements included in the Hazardous Materials Regulations (HMR).
- Notice on enforcement discretion for hazardous liquid pipeline, underground natural gas storage, and liquefied natural gas facility operators (March 20, 2020)
- PHMSA does not intend to take any enforcement action with respect to operator qualification (OQ) and control room management (CRM) requirements and will consider exercising enforcement discretion with respect to drug testing requirements.
- Indicates that for other regulatory requirements that pose compliance challenges, operators should "adequately document any such issues and communicate promptly with their regulator about them" and "PHMSA will exercise discretion in its overall enforcement of other parts of the pipeline safety regulations with the intent of providing operators with the flexibility to maintain normal operations while ensuring public safety and protection of the environment."
- Indicates that for intrastate operations, PHMSA does not intend to object to waivers, special permits, stays of enforcement, or similar measures granted by State authorities.
- Indicates that notice "applies only to operators faced with limited resources as a result of the impacts of the National Emergency."
- PHMSA Guidance to State Partners Regarding COVID-19 (March 19, 2020)
- Indicates that PHMSA and state partners "intend to prioritize safety-sensitive inspections and investigations"
- Indicates that PHMSA "will work with industry and State partners to address any emergent need for special permits or State waivers and, if appropriate, reschedule some inspections"
- Important Links:
Office of Management and Budget
- Among other things, directs agencies to "[c]onsider streamlining regulations and approval processes for critical services, including issuing general waivers policies and delegating decision-making where appropriate."
Department of the Interior
- E&E News reported on March 26, 2020 that oil and gas operators and trade groups were preparing requests to ease enforcement on federal lands.
- Bureau of Land Management (BLM)
- Emergency Guidance for Lease Suspension: Sets forth steps for oil and gas lessees to apply for suspensions of operations or production under either "force majeure" or "conservation of natural resources" due to COVID-19 impacts.
- Emergency Guidance for Royalty Rate Reduction: Sets forth steps for oil and gas operators/payors to apply for temporary royalty rate reductions due to the COVID-19 pandemic.
- Bureau of Ocean Energy Management (BOEM)
- Notice regarding email submission of documents (effective April 2, 2020): Provides that documents may be submitted to the Office of Leasing and Plans via email (with the exception of Exploration Plans, Development Operations Coordination Documents, Development and Production Plans, and Surveys, for which appointments for paper filings must be scheduled).
- Important links:
- CalEPA has released a statement on "Compliance with Regulatory Requirements During the COVID-19 Emergency," which provides that "[c]ontrolling pollution in communities with high rates of respiratory disease and multiple environmental burdens remains a priority[,]" and the agency will "continue to respond, investigate, and -when necessary- take action on complaints related to environmental non-compliance."CalEPA also says that it will fill any enforcement gaps left by EPA's decision to reduce environmental oversight.During this time, the ongoing clean-up of contaminated sites will be prioritized.
- CalEPA's statement also acknowledges that "some regulated entities may need additional compliance assistance as a result of the COVID-19 pandemic," however the onus is on the regulated entity to contact the appropriate CalEPA board or office to request any specific time-delimited remedies.The regulated entity must define the hardship in its request, and direct any such request to the relevant office as early as possible.
- CalEPA and the other state agencies in the Unified Program are also working with management and legal counsel to develop guidance for regulated businesses, which should be released shortly.
- California's Department of Pesticide Regulation issued Pesticide Enforcement Guidance that is applicable during the COVID-19 pandemic.The Guidance provides in relevant part that the school regulation notification requirements remain in effect all applicable health restrictions around homes and schools must be strictly enforced 7 days a week.As children will be at home more, all violations that occur near homes or schools will be considered "Class A" violations and will carry fines at the top of the range.
- Compliance with California Water Board orders and other requirements is generally considered an essential function, and any entity that cannot comply due to COVID-19 must notify the applicable Water Board immediately; non-essential file reviews are postponed and essential file reviews are by appointment only; Water Board meetings are being conducted remotely via teleconference and members of the public may watch and comment if desired.The Water Boards are continuing day-to-day work.
- California Water Boards released Guidelines and Best Practices for Water and Wastewater Systems.The Guidelines provide that any water systems that anticipate not being able to complete all required monitoring and testing should notify their Division of drinking Water District Office immediately.The Guidelines also offer information about how to ensure continuity of service, communicate with customers, and share equipment and staffing to relieve water systems under financial distress.
- California Air Resources Board (CARB) has released a message on its response to COVID-19, which states that CARB has postponed all large public gatherings, such as hearings and symposia, and suspended in-person services.CARB's regulations continue to be in effect and deadlines still apply.CARB employees are available by e-mail and phone.
- The California Department of Toxic Substances Control (CDTSC) has released an Advisory on the "Management of Hazardous Waste by Permitted Treatment, Storage, and Disposal Facilities During the Coronavirus Disease 2019 (COVID-19) Pandemic."The advisory provides that the Hazardous Waste Control Law and its implementing regulations, hazardous waste permits, and authorizations remain in effect and permitted treatment, storage, and disposal facilities must comply with notification and reporting requirements.If compliance is not possible due to COVID-19-related issues, the permitted entity should take all reasonable steps to minimize or correct releases to the environment, report all noncompliance, and document the requirement that was not met as well as the circumstances leading to the inability to comply and the actions taken to return to compliance.CDTSC is also granting extensions to the accumulation time period, and issuing temporary emergency permits for hazardous waste management during the pandemic.
- CDTSC also released an Advisory on the "Management of Hazardous Waste by Generators, Transporters, Electronic Waste Handlers, and Tiered Permit Facilities During the Coronavirus Disease 2019 (COVID-19) Pandemic."The advisory reiterates that the Hazardous Waste Control law remains in effect and permitted facilities must comply with all statutory and regulatory requirements.However, if compliance is impossible, the regulated entity should document the requirement that cannot be met, the circumstances leading to the delay, and the actions taken to come back into compliance.CDTSC is likewise providing extensions to the accumulation time period to these permitted entities.
- Important Links:
- All Indiana Department of Environmental Management (IDEM) offices are closed to in-person public activity.IDEM staff will continue to conduct business remotely during this time.
- IDEM has not identified any regulatory requirements that should be generally waived as a result of COVID-19, however, it will exercise enforcement discretion as appropriate.See the agency's Enforcement Discretion, Extension of Submission Deadlines, and Waiver of Specific Regulations for details.
- Governor Holcomb's Executive Order 20-05, extended by Executive Order 20-18, authorizes IDEM "to extend any non-essential deadline of their agency for a period of no longer than 60 days if deemed necessary to respond to the threat of COVID-19."Requests for extensions pursuant to this order should include: (1) a concise statement describing how COVID-19 contributes to the need for an extension; (2) the current deadline and number of additional days requested; and (3) citation to the rule/permit provision for which extension is being sought.
- IDEM recognizes that, due to restrictions and closures related to COVID-19, some permit applications may not be able to comply with public notice and meeting requirements that are prerequisites to obtaining certain permits. If an applicant believes it cannot meet notice or meeting requirements, it should include in its permit application materials: (1) a concise statement describing how the COVID-19 outbreak makes it infeasible to comply with the requirement(s); (2) actions the applicant is taking to ensure the public has an opportunity to receive information and participate as intended by the requirement(s); (3) citation of the specific rules/requirements it cannot meet; and (4) a concise statement describing why the applicant would be prejudiced by delaying action on the permit until applicable requirements can be met.
- All Public Water Systems must continue monitoring for regulated contaminants.IDEM encourages water utilities to build into their emergency response plans the following: (1) hire additional operators; (2) enter into mutual aid agreements with neighboring utilities to "share" appropriately certified operators; (3) implement personal protection protocols to reduce exposure amongst workers; and (4) establish a Continuity of Operations Plan (COOP).
- IDEM has issued Guidance for Public Water Systems to help them prepare their systems for safe use once they reopen buildings that may have been temporarily closed or used less frequently due to COVID-19.The Guidance applies to community water systems such as municipal water supplies, non-transient non-community water systems such as schools or factories, and transient water systems such as churches, bars, and restaurants.
- Due to the COVID-19 situation, IDEM is extending the deadline found in 327 IAC 8-12-7(e)(3)(B) to renew a drinking water certified operator license for those operators whose licenses are due to expire on June 30, 2020. In accordance with Executive Order 20-05, Section 13(A), the deadline for renewal shall be extended by 60 days, to August 30, 2020.
- IDEM has directed that all submissions to the agency be made electronically.Where paper copies or electronic signatures are required by rule or statute, the deadline will be extended until May 10, 2020.
- Important Links:
- LDEQ has issued a Fifth Amended Declaration of Emergency and Administrative Order that provides that all LDEQ public hearings are postponed until further notice and accompanying public comment periods adjusted accordingly; no new public hearings will be approved or scheduled until further notice; any invoices that are mailed in March or April will be uploaded to the LDEQ website and may be paid online; draft air permits will only be available online; late fees will not be assessed for outstanding invoices from March 19, 2020 until the expiration of the Fifth Amended Order.
- For facilities regulated by LDEQ in the Emergency Area, any deadlines to comply with required periodic monitoring or to file an application for renewal of an existing permit that occur between March 19, 2020 and the expiration of the Fifth Amended Order are extended by 30 days; however the 30-day extension does not apply to monitoring required by air permits issued under Title IV or V of the Clean Air Act, under the PSD program, or under any other federal Clean Air Act requirement.Title VI Semiannual Monitoring and Deviation reports and Annual Compliance Certifications that are ordinarily required to be submitted by March 31 may be submitted no later than May 1, 2020.Emergency reporting requirements are not suspended.
- Important Links:
- Per Executive Order 108, no municipality, county, or any other agency or political subdivision of this State shall enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of Executive Order 107 (directing all residents to stay at home until further notice).
- Governor Murphy's Executive Order No. 136 tolled all timeframes governing public notice, review, or final action on applications for, or renewals of permits, registrations, plans, petitions, licenses, rates, and other approvals under certain, listed statutes administered by NJDEP, beginning March 9, 2020, by each day during the Public Health Emergency.No request submitted pursuant to the following statutes shall be deemed complete or approved for failure to act within the prescribed timeframe:N.J.S.A. 13:1D-32, N.J.S.A. 13:19-8, N.J.S.A 48:3-7, and N.J.S.A. 58:16A-67.
- Executive Order 136 also affects timeframes for businesses to submit a registration form to NJDEP to engage in soil and fill recycling services, the deadline for the governing body of each municipality to submit its yearly recycling tonnage report to NJDEP, as well as the deadline for recyclers, manufacturers, collection locations, and local government units who collect electronic devices to submit their semiannual report to NJDEP.
- Pursuant to Executive Order 136, the Commissioner of NJDEP must issue an Administrative Order extending regulatory timeframes to accept public comment on applications for, or renewable of permits, registrations, plans or other approvals where necessary to ensure adequate public participation.
- In response to Executive Order 136, NJDEP issued Administrative Order No. 2020-06, modifying time periods for public comment under specified regulations.
- Governor Murphy's Executive Order No. 122, ceasing all non-essential construction projects, does not include certain fossil-fuel projects (included under the utility work exception).
- NJDEP has issued an Environmental Compliance and Enforcement Memorandum providing guidance for regulated entities during the COVID-19 public health emergency.
- On April 27, NJDEP issued an advisory extending certain monitoring and emission reports requirements for air quality permits. This extension applies to Title V Operating Permits, Preconstruction Permits or General Permits issued by NJDEP whose operations are affected by COVID-19 and may require additional time to meet certain monitoring or reporting requirements as identified in the advisory.
- NJDEP has extended the due date for the 2019 Annual Air Emission Statements to June 15, 2020.The extension does not require a formal request as described in N.J.A.C. 7:27-21.9.
- On April 24, NJDEP issued a Temporary Rule Modification to allow for the waiver of certain requirements for the remediation of contaminated sites (ARRCS) and technical requirements for site remediation, subject to criteria set forth in the therein.
- NJDEP recommends that remediation activities continue to the extent possible pursuant to regulatory and mandatory deadlines.In the event that remediation is not possible, regulated entities must document the reasons that remediation was delayed (including, for example, letters or emails from a property owner that denied access to the property).
- Pursuant to an April 13, 2020 Memorandum, NJDEP has temporarily suspended certain provisions of the Department's Solid Waste Rules, Recycling Rules, Hazardous Waste Rules, and Solid Waste Utility Regulations, subject to criteria set forth within the memorandum.
- NJDEP has issued a Temporary Modification of Certain Provisions of the Underground Storage Tank Rules, N.J.A.C. 7:14B, regarding the registration, operation, design, construction and installation, permitting, release reporting and investigation, remediation, and closure of underground storage tanks (USTs) and UST systems that contain hazardous substances, as well as requirements for certification of individuals and business firms performing services on USTs and UST systems and on unregulated heating oil tank (UHOT) systems.
- NJDEP issued General Guidance for Facilities and Contractors Maintaining Commercial Underground Storage Tanks, which applies to entities that own, operate, or are required to perform maintenance and repairs on USTs whose operations may be affected by COVID-19.
- Consistent with US EPA Guidance, NJDEP is advising all NJPDES permittees to make every effort to comply with all environmental compliance obligations and maintain their monitoring and reporting obligations as specified in their permits.In the event that a NJDEPS permittee cannot maintain compliance with permit conditions due to complications from COVID-19, the permittee must contact the applicable Compliance and Enforcement Regional Water Enforcement Bureau.
- NJDEP recognizes limitations due to COVID-19 for many regulated entities, including the Drinking Water and Wastewater Sector, and therefore has issued Distribution Sampling Guidance as well as Guidance for Reduced Monitoring Frequency for Sanitary Wastewater Discharges.
- NJDEP has also issued Guidance for Public Water Systems and Wastewater Monitoring for public drinking water systems in Category A (individual permits for domestic discharge) and ASC (general permit authorization for school discharge) NJPDES surface water discharge permitted facilities, as well as NJ State Certified Laboratories and any system in NJ that requires a potable water or wastewater licensed operator.
- NJDEP has issued a Temporary Rule Modification of Licensed Operator Rules, N.J.A.C. 7:10A, allowing for the waiver of certain provisions of the rules governing the eligibility, examination, and licensing of operators of Industrial Wastewater Systems, Public Wastewater Collection Systems, Public Wastewater Treatment Systems, Public Water Treatment Systems, Public Water Distribution Systems, and Public Non-Community Surface Water Treatment Systems.
- NJDEP also issued General Guidance for solid waste and recycling collectors and transporting and processing, transfer and disposal facilities, including temporary adjustments of limits and discretionary allowances.
- NJDEP has issued an advisory for regulated facilities to be aware of the requirement to call the DEP Hotline (877-927-6337) during the COVID-19 pandemic under certain enumerated circumstances.
- NJDEP has stated that it will continue to exercise enforcement discretion due to COVID-19.
- Important Links:
- In March, the NYSDEC Commissioner declared a state of emergency and authorized the Department's Regional Permit Administrators to issue general permits or emergency authorizations where, in the Department's judgment, activities necessary to immediately facilitate the construction, expansion, and operation of medical facilities, infrastructure, and related facilities is immediately required.
- According to a recent Waste Management Guidance, trash, recycling collection, processing, and disposal services are all considered essential services. This includes collection, transportation, processing, and disposal activities for any solid wastes, regulated medical waste, hazardous wastes, radioactive wastes, and other associated waste categories.Regulations associated with these activities continue to be in effect and any related questions should be directed to appropriate NYSDEC program staff.
- In response to concerns raised by numerous waste transporters, DEC said in a March 27, 2020 Memorandum that it will exercise its enforcement discretion with respect to certain provisions of 6 NYCRR Parts 364, 372, 374-2, and 381.NYSDEC will not pursue enforcement of requirements for signatures on waste shipping documents as specified in the Memorandum.All other provisions of these regulations remain in full force and effect.
- NYSDEC is not authorizing any general waivers of compliance requirements for SPDES permits, but will address individual inquiries and circumstances. If issues with compliance are identified, permittees and wastewater facility operators should: (1) document problems; (2) document efforts to address the problems; and (3) document additional actions taken to maintain facility treatment and achieve compliance. Operators should report non-compliance to NYSDEC.
- DEC considers these activities to be essential in remedial and bulk storage programs, but notes that these criteria are subject to change as the response to the COVID-19 pandemic continues.Activities include but are not limited to certain remedial construction activities, spill response actions, investigations of petroleum and hazardous waste releases, and construction, operation, and essential maintenance activities at registered bulk storage facilities.
- It appears that regulatory proceedings are being stayed on an ad hoc basis.
- As a result of Governor Cuomo's PAUSE order, NYSDEC is canceling previously scheduled public hearings and extending comment periods for 30 days for the following rulemakings:
- Proposed Subpart 225-1, Fuel Composition and Use - Sulfur Limitations - Comment period will be extended to 5/15/2020.
- Proposed Part 248, Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology for Heavy Duty Vehicles - Comment period will be extended to 5/15/2020.
- Proposed Part 230, Gasoline Dispensing Sites and Transport Vehicles - Comment period will be extended to 5/21/2020.
- Proposed Part 231, New Source Review for New and Modified Facilities - Comment period will be extended to 5/21/2020.
- Proposed Part 235, Consumer Products - Comment period will be extended to 5/21/2020.
- Various projects in the Environmental Notice Bulletin (ENB).
- Important Links:
- The Texas Commission on Environmental Quality (TCEQ) Chairman Jon Niermann issued an open letter to concerned citizens, public advocates, and members of the regulated community regarding TCEQ's COVID-19 response.The letter states that TCEQ has not relaxed any limits on air emissions, limits on discharges to water, requirements to ensure safe drinking water, or requirements related to the safe management of waste.Furthermore, TCEQ continues to monitor air quality and drinking water supplies.TCEQ investigators remain in the field, and the enforcement office continues to develop cases for both administrative enforcement and for referral to the Office of the Attorney General.TCEQ has determined that it may be inappropriate to pursue enforcement for violations that were unavoidable due to COVID-19, and will consider not bringing enforcement actions for such violations on a case-by-case basis.
- TCEQ will exercise enforcement discretion and consider: 2019 point source emissions inventories to be timely if submitted on or before April 30, 2020; 2019 Mass Emissions Cap and Trade and Highly Reactive Volatile Organic Compound Emissions Cap and Trade annual compliance reports submitted on or before April 30, 2020 to be timely; and financial assurance updates due on or before April 30, 2020 may be submitted by May 15, 2020.Any delays in TPDES NetDMR reporting, TPDES individual and general permit reporting, and MS4 and MSGP reporting should be documented explaining what caused the delay. On request, the Executive Director may approve variations from the requirements of Title 30 TAC § 39.604 related to air permitting public notice signage requirements.
- TCEQ customer service will be impacted, but work performed under TCEQ contracts is not subject to local COVID-19 stay-at-home orders.TCEQ buildings will be closed and the agency is only staffing a skeleton crew.The remaining employees will be teleworking through May 31, 2020. TCEQ is still accepting TERP grants, but documents must be submitted by email or fax.
- TCEQ has set up a clearinghouse of information for wastewater operators related to the onset of COVID-19, including assistance if an entity cannot operate its wastewater treatment system.
- TCEQ has released Guidance for public water systems on how to minimize impacts due to the COVID-19 outbreak.
- TCEQ has also released Guidance for temporary storage of bulk crude oil in above ground storage tanks at locations not regulated by the Railroad Commission.The Guidance provides that oil stored in this manner is subject to TCEQ permitting, reporting, and spill requirements.
- Regulated entities may submit enforcement discretion requests to TCEQ if noncompliance is unavoidable due to COVID-19.
- The Texas Railroad Commission (RRC) Hearing Division issued an Amended COVID-19 Emergency Response Order immediately suspending all in-person hearings indefinitely, and explaining that all scheduled hearings may be subject to postponement or transitioned to a video conference or telephone format.
- The RRC also issued waiver requests for: alternative fuels licensed companies and certified individuals; alternative fuels licensed transport companies; gas utilities; oil and gas operators; and pipeline safety operators.The RRC has also issued notices to: alternative fuels licensed certified individuals; pipeline operators and local distribution companies; and surface mining and reclamation operators.The RRC separately issued an additional notice to gas utilities authorizing the use of an accounting mechanism to seek future recovery of expenses resulting from the effects of COVID-19.The RRC also issued three additional notices to oil and gas operators extending certain expirations and filing requirements for specific permits and requirements, extending notification requirements under Statewide Rule 32, and providing temporary exceptions to certain administrative rules such as extending the amount of time to commence plugging wells, and temporarily waiving certain filing fees and surcharges.Finally, the RRC issued a notice to surface mining operators revising electronic and hard-copy submission procedures.
- The RRC is no longer accepting in-person filings, and all hearings are subject to postponement or transitioned to a video or telephonic format. RRC staff is available to answer energy industry questions, and online filing/processing is still available for operators.
- Important Links:
- DEQ has issued Guidance on Compliance and Enforcement due to COVID-19. DEQ expects all regulated entities to make every effort to comply with environmental compliance obligations and permit limits, but notes that, should compliance be impacted in any way by COVID-19, an entity should communicate regularly with DEQ. If full compliance is not possible, the affected facility should: (1) act responsibly under the circumstances to minimize effects and duration of non-compliance; (2) identify the nature and dates of non-compliance; (3) identify how COVID-19 caused non-compliance; (4) immediately inform DEQ of actions taken in response; (5) return to compliance as soon as possible; and (6) document and maintain all related documentation on site for at least three years.
- DEQ will exercise reasonable enforcement discretion within its authority when deciding to pursue potential violations caused by pandemic-related disruptions.
- After temporarily suspending all field work in order to allow the agency to assess COVID-19 exposure risks to field staff, DEQ has resumed a limited amount of monitoring activity. These activities include air monitoring, surface water investigations, and groundwater monitoring investigation programs. All other field work remains suspended as DEQ continues to assess exposure risks and develop mitigation plans. Suspension of this field work should not affect compliance at wastewater treatment plants. DEQ began implementing new safety protocols in order to resume additional field activities on May 4.
- DEQ's temporary suspension of field inspections should not affect compliance at wastewater treatment facilities. As part of their discharge permits, plants are required to have a specified level of licensed operators and staffing on duty to ensure approved discharge limits are met and public safety is maintained. If a facility's operations change or the plant operator expects an interruption in service, the operator is required to contact DEQ.
- DEQ's Pollution Response Program will continue to respond to statewide environmental emergencies and reports of significant pollution incidents.
- DEQ is continuing to investigate natural gas pipeline construction concerns through monitoring and inspections.
- Construction operators must still meet the requirements for their stormwater permits.
- DEQ, in accordance with the CDC and OHSA, recommends that COVID-19 waste continue to be managed in accordance with Virginia's existing procedures for solid and regulated medical waste.
- Important Links:
- The Washington Department of Ecology has released a statement on regulatory flexibility that provides that all state environmental requirements remain in effect, but the Department will exercise reasonable discretion within its authority when deciding whether to pursue potential violations that may be linked to the current COVID-19 pandemic.Regulated entities are encouraged to document the types of operational disruptions caused by the COVID-19 pandemic—such as staffing shortages, service shortages, disposal schedules, etc.—and contact the Department.
- The Department of Ecology has further stated that all applicable state requirements related to spill prevention and preparedness are still in effect, but the Department will exercise reasonable discretion within its authority when addressing spill prevention and response compliance disruptions related to the COVID-19 outbreak.Operators are encouraged to reach out to discuss compliance issues that can be attributed to COVID-19.
- The Department of Ecology has acknowledged that "[b]usinesses that generate dangerous waste may need to close or modify operations to practice social distancing and other precautionary actions due to Governor Inslee's" stay at home proclamation.The Department has stated that it cannot waive statutory or regulatory requirements, and expects generators to: (1) closely adhere to all federal, state, and local public health and safety guidelines; (2) comply to the best of their ability; and (3) report dangerous waste complaints or any imminent threat to human health or the environment to the relevant regional office immediately.
- The Department of Ecology is still processing permitting applications but there may be increased turnaround times.The Governor has temporarily suspended the Public Records Act requirement that agencies respond to public records requests within 5 days, and that agency offices be open for 30 hours per week for public inspection and copying of records. All public offices are closed to walk-in service through at least May 31, 2020, but field work and field inspections are being conducted if they can be performed safely and consistently with the Governor's stay at home order.Inspections are prioritized for essential businesses and based on the potential for environmental harm.
- Important Links:
- General Washington COVID-19 Updates
- Washington Executive Orders
- Department of Ecology News Releases
- Environmental Council of States, COVID-19 Resources for ECOS Members