Environmental Compliance During the COVID-19 Pandemic
Over the last few weeks, Oregon and Washington industries have had to implement significant changes to their operations to protect their employees and the public, and comply with shelter-in-place orders and social distancing guidelines related to the COVID-19 pandemic. MFA’s compliance experts have been consulting with industry environmental staff to evaluate the pandemic’s effect on environmental compliance. We have summarized a few of our general recommendations for your reference. We would be happy to discuss site-specific requirements with you, too, as we collectively navigate these challenging times!
The DEQ has announced that they will exercise “reasonable enforcement discretion” in deciding whether to issue enforcement actions intended to decrease pandemic-related risks and suspended inspections through April 14. They also provided documentation recommendations and referenced the EPA’s policy (summarized below) which provides reporting guidelines that will apply to submittals in Oregon.
Ecology noted that it will exercise “reasonable discretion” when deciding whether to pursue potential violations that may be linked to the current COVID-19 pandemic, suspended inspections until April 8, and encouraged facilities to reach out to Ecology staff to discuss noncompliance directly. Ecology also issued reporting guidelines stating that the agency understands that “there may be times where you cannot sample or retrieve lab results for DMR reporting” and provided detailed instructions on filing noncompliant DMRs.
The EPA has also issued a statement outlining the agency’s approach to compliance and enforcement during the pandemic. The EPA’s policy is retroactive (effective March 13) and notes that the EPA will exercise “enforcement discretion” for noncompliance “that results from the COVID-19 pandemic”. The EPA recommends that if compliance is not reasonably practicable, facilities should:
- Act responsibly to minimize the effects and duration of any noncompliance
- Identify the specific nature and dates of the noncompliance
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity
- Return to compliance as soon as possible
- Document the information, action, or condition
The EPA noted that they will temporarily accept digital/electronic signatures in lieu of “wet” signatures, as well as electronic/email submittals in lieu of paper submittals, if it is not feasible to submit paper reports with a “wet” signature. This policy has been adopted by DEQ and Ecology. Compliant reports will need to be submitted at a later date.
EPA also provided instructions for managing and disposal of hazardous waste during the pandemic, if generators are unable to transfer the waste off-site within the time periods required under RCRA.
Federal and state agencies stress that, although they recognize that efforts to protect public health may present unprecedented challenges, industries are expected to implement compliance tasks that can be executed safely and within the restrictions issued by local health authorities. The EPA, DEQ, Ecology, and many local agencies have canceled in-person meetings and inspections, and most of their staff are available only by email or phone.
Strategic Contingency Planning
Undoubtedly, working remotely, staff shortages, and facility shutdowns will impact compliance with stormwater, wastewater, air, and waste permits. We highly recommend that each permittee develop a contingency plan that establishes plenty of redundancy to account for the unexpected. This may involve facility staff providing training to others in the company and/or working with a consultant to ensure that compliance tasks are completed to the extent feasible. It may also include identifying critical parts of monitoring and recordkeeping systems and determining whether you have an inventory of replacement parts. Over the last couple weeks, MFA has been working with numerous industries to develop contingency plans, and we would be happy to assist your business as well. Proactive, strategic planning will not only minimize the chance of noncompliance—it will also be viewed favorably should noncompliance become unavoidable.
Documentation of COVID-19-Related Impacts
The agencies may be sympathetic and use “reasonable enforcement discretion” when tasks are missed because of COVID-19-related plant closure, lab closure, or unavailability of materials, but their discretion may not be equally extended to noncompliance at facilities that remain open, even if their staffing is reduced. We recommend that facility staff keep a detailed written record of pandemic-related impacts to their operations and compliance—these records may prove to be vital in demonstrating why noncompliance was unavoidable.
To the extent possible, do not wait until noncompliance has occurred. If you know that noncompliance will—or is likely to—occur (e.g., your facility will close and be inaccessible for sampling or you will miss an implementation deadline because of shipping delays), contact your regulator as soon as you can to discuss alternatives, waivers/variances, and reporting requirements. Many regulators are now working from home and are also dealing with issues related to telecommuting. MFA recommends that, should you find it difficult to contact agency staff, you try both phone and email and reach out to multiple agency representatives. Be sure to keep records of these communications to document your efforts.
We recommend that, as long as your facility and analytical laboratories remain open, you continue to sample if you can do so safely and in compliance with social distancing guidelines. We recognize that this may require training additional staff or hiring a consultant. MFA staff can currently assist our clients with sampling, if the sampling location(s) can be accessed with strict adherence to social distancing restrictions, protecting our staff and yours. If sampling cannot be done safely, document, document, document!
At this time, we do not expect leniency on missed reports, as all laboratories are currently open, although we recognize that this may change. Consistent with the EPA’s policy, agencies will temporarily accept electronic submittals for cases in which paper submittals are still required and electronic signatures for submittals that typically require a “wet” signature. But we recommend that you discuss this with your regulator ahead of time and save a copy of the discussion for your records (email would work best). Be sure to file electronic submittals on time, and establish a backup responsible party, internal or a consultant. Oregon and Washington industrial stormwater permit discharge monitoring reports are due May 15, and we are working diligently with many clients to submit these as soon as possible. Washington permittees must also remember to submit an annual report by May 15.
Inspections and Visual Monitoring
As with sampling, MFA recommends that, as long as your facility remains open, you continue to conduct compliance inspections and visual monitoring if you can do so safely and in compliance with social distancing guidelines. Be sure to establish a contingency in case your primary inspector becomes ill or is unable to get to work even though the facility remains open.
MFA is committed to keeping our clients updated regarding new compliance-related developments, and we will post updates as the situation evolves. We are here to help your business stay in compliance.