The Environmental Protection Agency ("EPA") has announced a temporary enforcement policy that will apply during the COVID-19 outbreak and will operate retroactively to March 13, 2020. The EPA says it expects regulated facilities to continue to comply with regulatory requirements, where reasonably practicable, but where compliance is impractical, relief from enforcement may be available in appropriate situations. Facilities that are noncompliant are expected to return to compliance as quickly as possible, and they must document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic. Click here to read more details about the enforcement policy.
 
This policy does not provide leniency for intentional criminal violations of law, nor does it apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. The suspension is temporary, but has no set end date. According to the EPA, it will provide a seven-day warning before terminating this temporary policy.
 
For those of you interested in West Virginia, the West Virginia Department of Environmental Protection, for its part, is trying to pursue business as usual during the COVID-19 pandemic, with certain exceptions. Scott Mandirola of the WV DEP reports "at this time the DEP is trying to maintain normal functions while working remotely and minimizing social contact. The EPA has sent emails indicating, although many of their staff are working remotely, they are attempting to also continue functioning in as normal a fashion as possible." 
                                                                                                                              
There are some areas, however, where the DEP has allowed accommodations and is considering others. Mr. Mandirola reports his staff "have been in contact with EPA and they advised us they are working on a policy/procedure for the fact that NPDES permittees may not be able to submit DMR’s on time in light of the current situation. They are planning to send it out to states when it is complete either this week or next." In addition, the WV DEP has issued an Emergency Bulletin allowing landfills flexibility with tonnage limits and hours of operation to allow disposal of materials in landfills. Information about the clean-up of a work space or disposal recommendations for contaminated medical waste would be available from the Department of Health and Human Services.
 
The West Virginia Manufacturers Association has also written to DEP Secretary Austin Caperton to ask for general relief from deadlines and certain environmental requirements while COVID-19 restrictions are in place. 
 
Contact a member of Spilman’s COVID-19 Task Force with any questions.