The disruption caused by the COVID-19 pandemic has upended nearly every segment of the economy and government, including environmental compliance and regulation. As a result, state and federal regulatory agencies are adjusting their compliance and enforcement efforts in the face of public health needs.

As the economic and regulatory landscapes shift due to COVID-19, it is critical to consider how your business engages with state and federal regulators to ensure permit compliance, meet deadlines and reporting requirements, or navigate permitting processes. The Washington Department of Ecology (Ecology) and the Oregon Department of Environmental Quality (DEQ) have each published statements regarding how COVID-19 is impacting their regulatory work. This guidance is being updated frequently, so we encourage you to visit each agency’s COVID-19 webpage (links are included below for reference). Below are a few key takeaways:

Washington Department of Ecology COVID-19 Updates

• Ecology staff are only available by phone or email. Offices are unavailable for walk-in service.
• Site visits and in-person meetings are generally cancelled, but it is important to discuss with project-specific personnel.
• Ecology cannot suspend NPDES or State Waste Discharge permit requirements. However, Ecology issued a statement that when samples or lab results for discharge monitoring report reporting cannot be retrieved, the new DMR code DD should be used in place of data that is missed. It is important to be in touch with your Ecology permit contact.
• The attorneys within the Attorney General’s office are also working remotely.
• Public meetings and events are being conducted online and/or telephonically if permitted by rule or statute.
• Public comments on environmental permitting and regulatory decisions are still occurring. Public comments are being accepted online, via email, and by mail.
• The Environmental and Land Use Hearings Office has warned of potential delays in issuing orders and the potential to postpone conferences and in-person hearings. It has relaxed the requirements for online filing to make it easier for litigants without access to printing.

Oregon Department of Environmental Quality COVID-19 Updates

• DEQ is requesting all facilities document the impact of COVID-19 disruptions on their operations. This includes documenting any staff shortages, activities the facility is unable to perform due to COVID-19, etc.
• While DEQ has not authorized any kind of violation of permits, licenses, or certifications, it has established that the following should be compliance priorities for facility operations:
  • Operating in a manner that protects public health and the environment, including safe operation of the facility;
  • Monitoring, testing, and completing documentation assuring proper facility operation;
  • Monitoring, testing, and reporting to demonstrate compliance with specific pollutant limits in your permit;
  • Monitoring, testing, and reporting to demonstrate compliance with all other requirements.
• Beginning March 23^rd, DEQ will offer in-person public services by appointment only.
• Until April 14^th, DEQ has suspended inspections of wastewater treatment facilities and industrial pretreatment systems if domestic waste is included or if the system is in close proximity to a wastewater lagoon.
• The Office of Administrative Hearings (OAH) is scheduling all hearings through April 30^th to be held by phone. In-person hearings that are already scheduled can be converted to phone or postponed by request. For hearings legally required to be in-person and that cannot be delayed, OAH will make every effort to conduct the hearing as scheduled.

U.S. Environmental Protection Agency COVID-19 Memo

The U.S. Environmental Protection Agency (EPA) has released an enforcement discretion memo that encourages all regulated entities to comply with their environmental compliance obligations and to document instances of noncompliance caused by COVID-19. Particularly, the EPA encourages documenting decisions taken in response to the noncompliance, best efforts made to comply, and steps taken to come into compliance as soon as possible. However, the EPA memo states it does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations. This is contingent upon the EPA agreeing that COVID-19 was the cause of noncompliance and the entity provides supporting documentation to the EPA. The EPA’s policy applies retroactively beginning on March 13, 2020. Please note that state regulatory agencies may take a different approach under their own authorities and it is important to proactively communicate with your permit contact.

State regulatory agencies are continuing to stress the importance of environmental compliance and reporting as a part of ongoing operations. It remains uncertain how the state agencies may consider lapses in required reporting, monitoring, or compliance when the lapses are caused by COVID-19; however, at this point the state agencies are not waiving compliance with permits and regulations. Accordingly, documenting instances of noncompliance, particularly those caused by COVID-19, is critical.